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

HCAL 3440/2019

[2025] HKCFI 5343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3440 of 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.   Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 20 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 September 2016 (“Board’s Decision”) dismissing the applicant's appeal against two decisions of the Director of Immigration (“Director”) dated 22 January 2016 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except BOR 2 risk^[1] ground.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003440_2019_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by his neighbour due to a land dispute as well as the son of the owner of the farmland which small part was farmed by the applicant.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 8 August 2025.  As the court learnt that the applicant was detained at the Lai Chi Kok Reception Center, the court therefore wrote to the applicant on 21 July 2025 to inform him that he should inform the detention center for the arrangement of the issuance of a body order should he wish to attend the hearing.  Since the court received no request for the issuance of the body order to bring the applicant to attend the hearing, the applicant was absent at the hearing. The court will dispose of the Leave Application on paper.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s grounds were set out in the Form 86. The supporting affirmation did not provide anything in support of the Leave Application.  Broadly, the applicant alleged that (i) the Board’s Decision was not reasonable and fair, (ii) it was procedurally unfair when the Board did not hold a hearing to enable the applicant to explain his case; and (iii) the Board failed to take into account the nexus of the political parties and official corruption in India, which effectively resulted in persecution by the State.

6.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the Director assessed the applicant’s claim entirely on the information and submissions provided by his lawyer assigned by the Duty Lawyer service. Despite several adjournments of the screening interview, the applicant was absent from all the scheduled dates of the interview.  The applicant’s notice of appeal to the Board was also late for about 4 months. In the Board’s Decision, the Board refused the late filing of the appeal against the Director’s Decision after it rejected the applicant’s reason for his delay. The Board concluded that there were no special circumstances that would render it unfair or unjust in disallowing the late filing of the applicant’s notice of appeal. In refusing the late filing of the appeal, the Board did not consider the merits of the claim.

Applicable legal principles governing

Late filing of notice of appeal to the Board under s.37ZT of the Immigration Ordinance[5]

7.  Notwithstanding the amendments on 1 August 2021 to s. 37ZT (2), the case law interpreting them will still apply in this case. In Re Khan Kamal Ahmed^[6] and Re Qasim Ali^[7] , the Court of Appeal held that under s. 37ZT (2) (b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20].  Recently, the Court of Appeal in Re Doyaoen Josephine Biba^[8] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2^nd Decision on BOR 2 risk. Hence, the facts of the present case are totally different to those of the Court of Appeal’s decision in Re Doyaoen Josephine Biba.

8.  When considering whether to allow the late filing of the notice of appeal, a Board is required to take into account “any other relevant matters of fact within the knowledge of the Board” under s.37ZT (2) , which includes a duty to “take the merits of the applicant’s case into account”:See Re Khan Kamal Ahmed [17]-[20].

9.  In the present case, the Board had not assessed the merits of the applicant’s claim.  Thus, it would not be apparent to an objective reader of the Board’s Decision whether the Board had in fact considered the merits of the applicant’s claim.

10.  As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend time for appeal is vested in the Board. A high standard of fairness obliges the Board to undertake an examination of the merits. Thus, the Board’s failure to take into account relevant facts or circumstances is reasonably arguable that the Board’s Decision was erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness.

Whether to extend the time for the late filing of the Leave Application

11.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. In the present case, there is a delay of about 3 years.

12.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The applicant provided no explanation for the substantial delay.

13.  Having regard to the fact that Court of Appeal’s judgments in Re Khan Kamal Ahmed and Re Qasim Ali were only available on 2 and 8 April 2019 respectively, and that these decisions provide a good prospect of success in the intended judicial review, I believe that this court should exercise its discretion in grant an extension of time to allow the late filing of the Leave Application.

Conclusion

14.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  There is a realistic prospect of success in the intended judicial review.

Order

15.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

16.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

17.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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

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