RANJON DAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 3521/2019

[2025] HKCFI 5190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3521 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 October 2016”.

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 27 November 2019.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 6 October 2016.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 27 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-

“The decision made on unknown date but notified to Applicant on 25 day of November 2019.

The decision of the torture claims appeal Board/ Adjudicator, made on 06 day of October 2016 dismissing the Appeal by ruling that the Applicant fails to establish a case for Non-refoulement whether under the principles of Torture or BOR 2 or BOR 3 or Prosecution. (The Decision).”

2.  In fact, the Torture Claims Appeal Board (“the Board”) only made one decision on 6 October 2016 (“the Board’s Decision”), which refused the applicant’s late filing of his Notice of Appeal/Petition (“NoA”) against the decision of the Director of Immigration (“the Director”) dated 8 June 2015 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim. The applicant also stated in paragraph 6 under the heading “FACTUAL BACKGROUND AND CHRONOLOGY” of his supporting affirmation dated 27 November 2019 that he got the Board’s Decision on 25 November 2019.

3.  Thus, it is clear that the decision in respect of which relief is sought in the Leave Application is only the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003521_2019_files/the_Board's_Decision.pdf

Amendments

4.  In Form 86, the applicant named “Mrs Helena LEE, ESQ., Torture Claims Appeal Board, Formerly an Adjudicator appointed by the Secretary for Security as an Adjudicator (Torture Petitions) delegated by Chief Executive of the HKSAR to determine petitions to the Chief Executive pursuant to Art. 48(13) of the Basic Law for protection under Article 3” as the putative respondent.

5.  Ms Helena LEE was in fact making the Board’s Decision on behalf of the Board in her capacity as a member of the Board. Hence, the putative respondent in the Leave Application should be the Board instead.

6.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

7.  As aforesaid, the decision in respect of which relief is sought should be “Torture Claims Appeal Board’s decision dated 6 October 2016”. Thus, on this court’s own motion, it is so amended.

Late application

8.  Form 86 was filed on 27 November 2019, which was more than 37 months after the Board’s Decision (made on 6 October 2016). By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. The applicant was hence late for more than 34 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.  The applicant sought an extension of time under Order 53, rule 4(1) in paragraph 3 of the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which was annexed to his Form 86.

11.  As aforesaid, he mentioned in paragraph 6 under the heading “FACTUAL BACKGROUND AND CHRONOLOGY” in his supporting affirmation that he got the Board’s Decision on 25 November 2019. He stated in the same paragraph that “This is an application for leave to apply for Judicial Review out of time as I just get the Decision so late”.

12.  However, the applicant provided no explanation as to why he received the Board’s Decision late.

13.  The delay in the present case was substantial and the reason the applicant provided was unsatisfactory. However, as discussed below, this court is of the view that there are merits in the Leave Application. Hence, this court will grant an extension of time to the applicant to file the Leave Application out of time on 27 November 2019.

The applicant’s case

14.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of the NoA.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 August 2025.

16.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

17.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant annexed a document to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. Further, the applicant asserted some more grounds in his supporting affirmation dated 27 November 2019.

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA 524).

21.  Thus, apart from the various grounds for the intended judicial review as advanced by the applicant, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  It is clear from the Board’s Decision that the Board did not consider the merits of the applicant’s appeal/petition at all.

23.  In concluding that there was no basis on which it could exercise the statutory discretion to extend time for the applicant to file his NoA, the Board only took into consideration that the applicant provided no reason for his delay of almost 10 months.

24.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

25.  In other words, in failing to consider the merits of the applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision.

26.  This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable. It is therefore unnecessary for this court to deal with the grounds for the intended judicial review as asserted by the applicant.

27.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

28.  For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 27 November 2019, and leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

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