KULDEEP SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1343/2020

[2025] HKCFI 5436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1343 of 2020

   Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 be amended on the Court’s own motion, substituting the “Non-Refoulement Claims Petition Office” as the Putative 2nd Respondent in place of “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition”, and naming the Director of Immigration as the Putative Interested Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from India.  By a Form 86 filed on 29 June 2020 (“Form 86”), and a supporting affirmation also filed on 29 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Non‑Refoulement Claims Petition Office (“NRCPO”) dated 8 May 2020 (“NRCPO Decision”)[1], and of a decision of the Director of Immigration (“Director”) dated 28 April 2017 (“Director’s Further Decision”).

2.  The Applicant sought an oral hearing of his application, at which he appeared and made some submissions, which I deal with below. 

3.  I will use the abbreviations and definitions from the NRCPO Decision and the USM 2334 Decision[2] (defined below) unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision and the USM 2334 Decision.  I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be killed by a group of farmers due to a commercial dispute;

(2)  The Applicant’s claim was assessed on the basis of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected as not being substantiated in a decision of the Director of Immigration (“Director”) dated 22 September 2015 (“Director’s 1^st Decision”);

(3)  The Applicant filed a Notice of Appeal/Petition against the Director’s 1^st Decision to the TCAB/NRCPO.  The latter determined that he had failed to make out his claim for non-refoulement relief on the basis of BOR 3 Risk, Persecution Risk, or Torture Risk in a decision dated 16 March 2017 (“USM 2334 Decision”).  No further steps were or have been taken by the Applicant in relation to the USM 2334 Decision;

(4)  The Director by a letter dated 12 April 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6].  The Applicant failed to do so by the deadline of 26 April 2017.  The Director then found, by a decision dated 28 April 2017 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim;

(5)  On 4 January 2018 the Applicant submitted a notice of appeal/petition against the Director’s Further Decision, which included an application for late filing (“2^nd Petition”); and

(6)  On 8 May 2020 the NRCPO (which was constituted by the same adjudicator who had made the USM 2334 Decision) issued the NRCPO Decision, in which it refused the Applicant’s application for late filing of his 2^nd Petition.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The Applicant has not identified or set out any grounds of judicial review in the Form 86.  Rather, he relies on the Grounds in Exhibit “KS-(2)” to his Affirmation, all of which have been adapted almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

(1)  At Paragraph 1 of the Exhibit, “The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non‑refoulement claim.  He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported back to his country.” (Ground 1)

(2)  Also at Paragraph 1 of the Exhibit, “In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.” (Ground 2)

(3)   Various grounds at Paragraphs 2 to 4 of the Exhibit which are all said to relate to what is defined therein as the “Director’s Decision” (but which in context must relate to the Director’s Further Decision as defined herein) (Grounds 3) and which I reproduce verbatim below:

“2. From the Director's Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant's case. This has indeed led to an unfair outcome of rejecting the Applicant's non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant's aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant's assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

9.  However, once the Applicant had sought to petition (via the 2^nd Petition) to the NRCPO the Director’s Further Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  Hence Grounds 3 and all of the allegations therein must be dismissed, and when considering Ground 1 I ignore the portions that relate to the Director and/or the Director’s Further Decision as those are also not reasonably arguable and must be dismissed. 

10.  The remaining portion of Ground 1 is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15). 

11.  Nevertheless, given the seriousness of the issues at hand, and notwithstanding the similarly vague and unparticularised nature of Ground 2, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds. 

12.  The NRCPO set out the relevant procedural history to the application before it, including how the Director’s Decision and the USM 2334 Decision had been reached, and the reasons given by the Applicant for late filing.  It then referred to Paragraphs 9.1 to 9.4 of the Petition Guide (which correctly referred to ss. 37ZT(1) to (4) Immigration Ordinance (CAP. 115)[7] (“Ordinance”)) and considered that, as a matter of law, regard might be had to the merits of the claim.  It then refused the Petitioner’s late filing application having had due regard to (i) the reasons offered by the Applicant for the late filing; and (ii) other circumstances such as the merits of the Petitioner’s case.

13.  I do not see that the Applicant has any reasonably arguable case that there was any procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that justifies vitiation of the conclusions in, and the grant of leave in relation to, the NRCPO Decision. In particular:

(1)  There is no public law basis to vitiate the NRCPO’s approach and conclusions as to the reasons for delay.  It was clearly the Applicant’s duty to provide the Director and the TCAB/NRCPO with an address to which correspondence or notice could come to his attention in a timely manner.  As he did not apparently do so, he had to shoulder the consequences of his failure to provide an effective updated address (see Hasmi Rizwan Imran [2018] HKCA 439 at §§14 and 15, s. 37ZA(2) of the Ordinance, NRCPO Decision paragraphs 4 and 14).

(2)  As required by Qasim Ali [2019] HKCA 430, the NRCPO clearly considered, the merits of the Applicant’s case with regard to its previous decision (i.e. the TCAB Decision) and having regard also to the contents of the 2^nd Petition (see Paragraphs 15 to 23).  For reasons below I do not see that it is reasonably arguable that such approach or its related conclusions are vitiated by any public law error (including breach of the requisite high standard of fairness) that justifies the grant of leave, whether as alleged and/or with regard to Ground 2:

i.  The Applicant, who was under a duty in s. 37ZA(1) of the Ordinance, had ample time and opportunity to arrange all documents and evidence relevant to his claim, including in relation to the 2^nd Petition.  After all, he had been legally represented in relation to his claim up to the Director’s 1^st Decision (made in September 2015), and had already had the benefit of the process leading to and reasons in the USM 2334 Decision (made in March 2017), as well as the process leading to the Director’s Further Decision (made in April 2017), as to which he has to shoulder the consequences of any failure to provide the Director and/or the TCAB/NRCPO with an effective updated address;

ii.  It was only in the 2^nd Petition that the Applicant alleged that he had “many documents” to support his case on the merits and that the Director had not given him time to submit such.   However, the question of whether to allow late filing is to be decided as a preliminary decision without a hearing (see s. 37ZT of the Ordinance), and in spite of being under a duty as set out in s. 37ZA(1) of the Ordinance the Applicant did not provide the NRCPO with (and still has not provided) (a) Any details of the documents that he would have arranged to produce, including their identities and nature (b) What issues and facts the documents related to and proved (c) When those documents became known and/or available to him; and (d) Any explanation as to why such documents were not mentioned or produced before the complaint was made in the 2^nd Petition, and were not even included alongside the 2^nd Petition; and

iii.   The Applicant has also never explained how such documents (or the alleged failure to allow him to “arrange” such) had or would have affected, impeached, or vitiated the analysis or conclusions reached in the NRCPO Decision, including in particular that as to internal relocation.

(3)   I also see no possibility that remittal would or might lead to a different outcome.  This is so if the NRCPO were to apply the current s. 37ZT(2) and (3)[8], where regard would be had to the matters and approach in Paragraph 13(1) above, the length of the delay, and the Applicant’s reason for late filing.  This would also be the case even if the NRCPO were to apply the version in force at the time of the NRCPO Decision, where regard would also be had to the matters at Paragraphs 13(2) above. It would hence be futile to remit the matter, and leave should be refused as there is no realistic prospect of relief being granted[9].

14.  At the hearing before me the Applicant advanced a bare allegation that his enemy still came to his home in India and asked for money.  However, I do not see how such unsupported claims are relevant to or assist his application for leave, given the contents and my analysis of the NRCPO Decision, and the nature of judicial review proceedings.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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