KARIM ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1530/2020

[2026] HKCFI 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1530 of 2020

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, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; 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 22 July 2020 (“Form 86”), and a supporting affirmation also filed on 22 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non‑Refoulement Claims Petition Office (“NRCPO”) dated 16 August 2019 (“TCAB Decision”)[1].

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

3.  I will use the abbreviations and definitions from the TCAB Decision and the Director’s Decision (defined below) unless otherwise specified herein. I have also amended the Form 86 on my own motion to properly identify the Putative Respondent.

Background

4.  This is set out in the TCAB Decision and the Director’s 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 one Wakil;

(2)  The Applicant’s claim was assessed on the basis of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected as not being substantiated in a decision of the Director of Immigration (“Director”) dated 7 April 2017 (“Director’s Decision”);

(3)  On 7 June 2017 the Applicant submitted a notice of appeal/petition against the Director’s Further Decision (“Notice of Appeal”), which included an application for late filing; and

(4)  On 16 August 2019 the TCAB/NRCPO issued the TCAB Decision, in which it refused the Applicant’s application for late filing of his Notice of Appeal.

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 2012, 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 (Peter 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).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the TCAB Decision, and more than 8 months out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.  Dealing, firstly, with the merits of his application, the grounds mentioned in the Form 86, which have been copied almost word for word from other cases, are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)   “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

(2)  “… the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal”; (Ground 2)

(3)  “…the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness”; (Ground 3) and

(4)  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4)

11.  The Form 86 and the Affirmation also contain the following allegations of which Complaints 1A to 2 have, again, been copied almost word for word from other cases:

(1)  In the Form 86, that the Applicant believes he was not given a fair opportunity to “keep forward” his submissions in an oral hearing nor was he invited to submit written submissions, “Even if the Adjudicator decides not to have oral hearing, they should at least invite him to submit written submissions and evidence”, and that “When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1A)

(2)  In the Affirmation that “The Board erred by failing to maintain the high standard of fairness by not holding an oral hearing which would have allowed me an opportunity to clarify my situation” and in relation to such that “I was not legally represented and it is reasonable to expect that I did not know whether there was any channel to complain about the above procedure. The adjudicator did not inform me that I could complain. I had never been informed in my language that I could complain”; (Complaint 1B) and

(3)  In the Form 86, that the TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes,” and “The lack of credible source of information has resulted in them making groundless speculations that it is safe for [the Applicant] to return back to [the Applicant’s] country of origin”. (Complaint 2)

(4)  In the Form 86, that the Applicant only received the TCAB Decision “recently” when he “went there to report for Recognisance and the Immigration officer told [him] that his appeal has been determined and the Applicant needs to go back to his country of origin. The Applicant was shocked to hear about this thing and the Applicant visited [NRCPO] where the Applicant was given a copy of the [TCAB Decision].” (Complaint 3)

(collectively, “the Complaints”)

12.  Grounds 1 to 4 are merely 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 TCAB Decision. They are hence entirely inadequate, as 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 §17; 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). Complaint 2 also does not contain particulars.

13.  Nevertheless, given the seriousness of the issues at hand and the Complaints, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

14.  The TCAB/NRCPO set out the relevant procedural history to the application before it, before referring to salient sections of the Immigration Ordinance (CAP. 115) [8] (“Ordinance”) in force at the time, and the reasons given by the Applicant for the late filing of the Notice of Appeal. The decision-maker then outlined the inquiries that it had made, and the attendant results and evidence before it in relation such issue. It then refused the Petitioner’s late filing application having had due regard to such matters, and as it was not satisfied that there were any other circumstances by reason of which it would be unjust not to allow the late filing of the Notice of Appeal.

15.  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 rejection of the late filing application in, and the grant of leave in relation to, the TCAB Decision. In particular:

(1)  There is no public law basis to vitiate the TCAB’s approach and conclusions as to the reasons for delay, including by way of the Complaints, none of which raise any reasonably arguable ground of judicial review. In particular:

i.  Firstly, under s. 37ZT of the Ordinance the late filing application is to be decided as a preliminary decision without a hearing. There is hence no basis for any of the Applicant’s protests or Complaints insofar as they relate to or are based on the lack of an oral hearing;

ii.  Secondly, the TCAB/NRCPO gave the Applicant opportunities to provide further relevant information in relation to his application for late filing. While he availed himself of such by a letter dated 21 August 2018, he had thereafter apparently failed to fulfil his duty to provide the TCAB/NRCPO with an effective updated address to which correspondence or notice could come to his attention in a timely manner, and hence had to shoulder the consequences of such (see Hasmi Rizwan Imran [2018] HKCA 439 at §§14 and 15, s. 37ZA(2) of the Ordinance)[9]. In that regard I do not consider that the Applicant’s bare allegation (as advanced only at the oral hearing before me) that he had, within some month that he could not remember within 2018-2019, moved to and updated the staff of the Director with an unspecified address at 64-65 Kimberley Road, to be credible or in any event relevant to this issue; and

iii.  Thirdly, on the facts of the case and given its vague and unparticularised nature I do not see or understand how Complaint 2 could be in any way construed as being related to such issue.

(2)  While per Qasim Ali [2019] HKCA 430 the TCAB/NRCPO was required to consider the merits of the Applicant’s case, the decision-maker would apply the amended version of s. 37ZT(2) and (3) of the Ordinance and the issue of the Applicant’s merits would be academic as there would be no need to have regard to the substantive merits of the Applicant’s appeal (Cadnan Foose Maxamad [2022] HKCFI 429 at §§20-21; Ripon Mohammed [2022] HKCFI 592 at §34.a. to b.). It would hence be futile to remit the matter, and leave should be refused as there is no realistic prospect of relief being granted[10] as the TCAB/NRCPO would refuse to allow late filing given the matters addressed at Paragraph 15(1) aboveError! Reference source not found..

16.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

17.  Secondly, there is undue delay in this case as the leave application was filed over 8 months out of time. Despite this, and the Applicant’s duty of full and frank disclosure as mentioned above, there was no request for an extension of time to make the application in the Form 86, even if Complaint 3 therein could be approached as an attempt at explaining the undue delay.

18.  As mentioned above, the Applicant made a bare allegation at the hearing before me that within some month that he could not remember within 2018-2019, he had moved to and updated the staff of the Director with an unspecified address at 64-65 Kimberley Road. He also claimed at the hearing that the first time he had heard his case was over was when the staff of the Director called him to inform him that his case was over and that he did not receive any mail. When I asked him to explain why this differed from Complaint 3 as contained in the Form 86, he said he did not remember, but clearly remembered that he had received a telephone call.

19.  I do not accept that I have been given an acceptable explanation for the delay. Firstly, I do not accept any of the Applicant’s claims as made in Complaint 3, or at the hearing, as credible. In any case, I have not been shown any evidence that he had updated the TCAB/NRCPO with his alleged address at 64-65 Kimberley Road, or for that matter with any address subsequent to those mentioned at Paragraphs 22 to 24 of the TCAB Decision. He hence has to shoulder the consequences of his apparent failure, and breach of his duty, to do so. Moreover, the fact that the Applicant is a litigant in person and may be ignorant of the rules of court does not justify the delay (Pascua Janice Alcaraz [2025] HKCA 579).

20.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

21.  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