NJIE SAMUEL JOHN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 173/2026, [2026] HKCA 956

On Appeal From [2026] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2026

(ON APPEAL FROM HCAL NO 1210 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Val Chow (“Judge”) on 11 February 2026 refusing to grant the applicant an extension of time to file the application for leave to apply for judicial review and dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 May 2020.  In that decision, the Board refused the applicant’s late filing of the notice of appeal/petition against the decision of the Director of Immigration (“Director”) dated 25 July 2019 refusing to re-open the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Gambia born in 1988 and his claim was made on the basis that if he returned to Gambia, he would be harmed or killed due to his political involvement.  However, the applicant failed to file the non-refoulement claim form within the specified time limit or at all. Therefore, on 3 May 2018, the applicant’s non-refoulement claim was treated as withdrawn pursuant to section 37ZG(1) of the Immigration Ordinance (Cap. 115).  The Director subsequently rejected the applicant’s request to re-open his non-refoulement claim by a decision dated 25 July 2019.  The applicant later filed an appeal to the Board, but it was filed more than three months after the prescribed deadline for filing an appeal.  The details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [4] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [5] – [14] of the Form CALL-1.

Appeal to this Court

3.  On 25 February 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would face persecution risk upon refoulement, that there would be no state protection nor internal relocation, and that the Board and the Director relied on outdated and misleading information.

4.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall determine the appeal on the basis of the available documents and materials.

Discussion

5.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

6.  In the present case, we are satisfied that the Board had properly refused the late filing of the applicant’s notice of appeal/ petition in accordance with section 37ZT of the Immigration Ordinance, Cap. 115 (“Ordinance”). The Board carefully considered the applicant’s reasons for delay and found them unsatisfactory, because there was no explanation of how the applicant’s health problem prevented him from returning the completed non-refoulement claim form, the applicant could file the appeal by himself when he was in custody, and there were no suggestions of any legal or practical impediment during his time in custody.  The Board further considered that there were no special circumstances that would make it unjust to disallow the late filing of the appeal.  Under the Ordinance, the Board was entitled to come to these conclusions for the reasons given in its decision.

7.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court is not concerned with the merits of the question whether the applicant should be allowed to file a late appeal to the Board, but only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  As the Board’s decision was issued prior to the amendment to section 37ZT(2)(b) of the Ordinance in 2021, the reasoning in Re Qasim Ali [2019] HKCA 430 applied, in which the Board should take into account the merits of the appeal as well.  In the present case, the Board had duly considered the underlying merits of the applicant’s intended appeal at [22] to [27] of its decision.  The applicant has failed to establish or even identify any public law grounds for impugning the Board’s decision.

8.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.