GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.   This is the Applicant’s application by Form 86 filed on 3 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 28 November 2018 dismissing his appeal against the decision of the Director of Immigration in his Notice of Further Decision refusing his claim for non‑refoulement protection.

2.   Upon the Court’s enquiry, the Board has not made any decision relating to the Applicant dated 28 November 2018, but has made one in respect of him and in the same context dated 25 November 2020.  It is obvious that the Applicant’s intention was to seek judicial review of this decision.  Hence, on its own motion, the Court amended the date of the decision in respect of which relief is sought to “25 November 2020”. 

3.  The Applicant requested an oral hearing.  An oral hearing on 21 January 2026 was scheduled for him.  Notice of hearing were sent to him by post to his address at Reclamation Street as stated by him in his Form 86 and to his last known address as discovered from the Immigration Department on 13 November 2025.  Neither of the notices has been returned through the course of mail.  He has never informed the Court of his change of address since filing the Form 86.  On 20 January 2026, a court staff successfully contacted him on his mobile phone and reminded him of the hearing.  However, he did not appear at the hearing.  The staff also attempted to contact him by phone at 10:30 am on the date of the hearing, but the call was not answered.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that his leave application may be justly determined on paper without an oral hearing.

Explanation for Delay

4.  The leave application was filed 3 months and 8 days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than 8 days out of time.  Leave to file the Form 86 out of time is required.

5.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  

6.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  Despite having been served with the notice of hearing and having been personally reminded of the hearing on the very day before the hearing, the Applicant did not appear.  The irresistible inference is that he had no intention to prosecute his leave application.  He did not attend the hearing and did not answer the court staff’s call on the day of the hearing.  Three weeks have lapsed since the date of the hearing.  He did not approach the Court to explain his absence or to request for another hearing. He exhibited no intention to prosecute his leave application.  Although the leave application was only eight days out of time, it has past the three months’ period and is regarded as not having been promptly made.  In the circumstances, in particular his lack of intention to prosecute his leave application, extension of time to file the Form 86 is refused.

Conclusion

7.  For the above reasons, leave for the Applicant to file the leave application out of time is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1