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

HCAL 1046/2022

[2026] HKCFI 2962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1046 of 2022

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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 5 October 2022, 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 28 December 2021 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 8 July 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001046_2022_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Adjudicator of the Board and the Director as the proposed respondents, and did not name any interested party. As the Board should have been the proper putative respondent and the Director the putative interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by his paternal grandfather and two uncles due to a farmland dispute. 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.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 May 2026. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  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 Form 86 provided no such grounds. In the supporting affirmation, most of the allegations were only concerned with the Director. For those relating to the Board’s Decision, the applicant averred unreasonableness and unfairness.     

7.  At the hearing, the applicant stated that he had nothing to say or to elaborate on the written grounds.   

8.  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 Board found that the applicant was not a credible witness and that the core elements of his evidence lacked credence. The Board found that the applicant would not face any risk of harm if refouled. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds stated in the supporting affirmation were either irrelevantly concerned with the Director or vague and general. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay. 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 of the Board’s Decision. The applicant was late for almost 7 months. The delay was substantial.

11.  The applicant’s explanation for the delay was that he was in custody when the Board’s Decision was delivered. He stated that he was arrested and detained on 26 October 2021 for having worked in Hong Kong illegally. He received the Board’s Decision while he was in detention. After he had served a month’s imprisonment for the conviction, he was released from Pik Uk Prison on 26 August 2022 before he was transferred to the detention facility of the Immigration Department. He was only released on 18 October 2022. The reason why he was not able to file the Leave Application earlier because he did not have sufficient money to pay for the filing fees.

12.  I do not accept the lack of means to file a leave application is good reason for the delay. The applicant provided no evidence as to the effort he had made to overcome the alleged lack of financial means. In the circumstances, I am not satisfied that he had provided good reason for the delay. In the absence of good reason for the delay, and coupled with the lack of good prospects of success of his intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

13.  The Form 86 be amended on the court’s own motion.

14.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

15.  The applicant’s application for leave to apply for judicial review be dismissed.

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