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

HCAL 2421/2019

[2025] HKCFI 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2421 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 oral submissions by the Applicant in open court;

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

2.   Extension of time be granted to the applicant to file the Leave Application out of time;

3.   Leave to apply for Judicial Review be granted.

4.   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 the respondent and the Director as the interested party.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 21 August 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 21 March 2018 (“Board’s Decision”).  The Leave Application was filed after the expiry of the 3 months’ time limit. In the Board’s Decision, the Board rejected the late filing of the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 February 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the ground of BOR 2 risk[1].

2.  In Form 86, the applicant named the Board and the Director as the respondents as well as the proposed interested parties.  Since the Board should have been the only respondent and the Director the only interest party, the Form 86 will be amended accordingly on the court’s own motion.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 21 February 2025.  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.

Background

4.  In its decision dated 18 June 2015 (“Board’s Earlier Decision”), the Board  rejected the applicant's appeal against the Director’s decision dated 21 April 2015 (“Director’s Earlier Decision”) dismissing the applicant’s non-refoulement claim on three grounds, namely BOR 3 risk[2], torture risk[3] and persecution risk[4]. On 30 June 2016, a court dismissed the applicant’s application (in HCAL 140/2015) for leave to judicially review the Board’s Earlier Decision, which decision is not the subject of the present Leave Application.

5.  The background as taken from the above-stated decisions of the Director and the Board can be briefly stated as follows.

6.  The applicant is a national of India.  He arrived in Hong Kong on 10 February 2015 on the strength of his Indian passport, and was refused permission to land. The applicant lodged a non-refoulement claim the same day.  The claim was based on a fear that if refouled, he would be harmed or killed by his paternal uncle Najar, and Najar’s two sons due to a land ownership dispute, which resulted in the death of the applicant’s father in November 2014.

7.  The applicant claimed that on 19 November 2014, Najar and his two sons came to the farmland of the applicant’s family in Punjab and used wooden sticks to beat him and his father.  The applicant’s father died from a head injury.  The police at the Mattewal Police Station took no action when they formed the view that there was no evidence that the attack by Najar and his sons had caused his father’s death.  The applicant also feared that Najar’s family would use their connections with the Shiromani Akali Dal party in Punjab to locate and harm him in India.   

8.  On 24 January 2017, the Director invited the applicant to submit additional facts before 7 February 2017 on all applicable grounds for non-refoulement protection, including BOR 2 risk.  When the Director received no reply from the applicant by the said date, the Director in the Director’s Decision found that the applicant had failed to establish any entitlement to the non-refoulement protection under BOR 2 risk, and rejected the applicant’s claim under BOR 2 risk.  

9.  The applicant sought to appeal against the Director’s Decision.  The Board found that the applicant’s notice of appeal filed on 16 November 2017 was late by 8 months and 6 days.  According to s. 37ZT of the Immigration Ordinance[5] governing a late filing of the notice of appeal at the prevailing time of the appeal, the applicant was then statutorily required to include with his notice of appeal “a statement of the reasons for failing to file the notice” on time and documentary evidence relied on in support of the reasons.  Pursuant to s.37ZT(2), the Board was required, based on the information available to it, to decide the preliminary issue as to whether to allow the applicant’s late filing of the notice of appeal without a hearing.

10.  The applicant did not provide any reasons to explain for the delay.  Nor did he adduce any documentary evidence.

11.  Based on the information available to the Board, the Board found that a delay of over 8 months to have been “serious” and “significant”.  It next considered the reason for the delay.  Adopting the widest approach in considering the reason for the delay, the Board took into consideration of all the relevant matters of fact within its knowledge when assessing if there was any “evidence to the contrary”.  It found that there was not any.  After applying the relevant legal principles, one of which required the need for the enforcement of the compliance with rules and for an efficient disposal of cases and costs proportionality, the Board rejected the late filing of the notice of appeal without considering the merits of the applicant’s appeal.

Applicable legal principles governing

(a)   Late filing of the Leave Application

12.  Since the present Leave Application was filed out of time, this court, when considering if an extension should be granted, will have regard to:

(i)    the length of the delay;

(ii)   the reason for the delay;

(iii)  the prospect of success of the intended appeal; and

(iv)  the prejudice to the respondent if an extension of time were granted.: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

(b)   Late filing of notice of appeal to the Board under s.37ZT

13.  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 [20].  

(c)   judicial review

14.  As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

15.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, he seems to have raised the following grounds:

(a)   the applicant never received the Director’s Decision;

(b)   the applicant was not provided with legal or language assistance for his Board appeal against the Director’s Decision;

(c)   the Director’s Decision was never explained to the applicant or read back to him by an interpreter;

(d)   the applicant had difficulties communicating with the outside world while he was in detention;

(e)   the applicant was not given an opportunity to submit additional information to the Board regarding BOR 2 risk and no oral hearing was held.

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

16.  At the hearing, the applicant gave reason for the late filing of the Leave Application.  He told this court that in March 2017, he was convicted of an offence in relation to his obtaining of unlawful employment in Hong Kong and sentenced to 15 months’ imprisonment.  After he had served 10 months’ imprisonment in Tong Fuk Correctional Institution, he was transferred to the Immigration Department’s detention center in Castle Peak.  On 5 February 2018, he was released on his own recognizance.  He stated that he did not receive the Board’s Decision until around one week before the filing of the Leave Application.  The applicant stated that he believed that the reason why he did not receive the Board’s Decision is because after he was discharged, he stayed in his friend’s place and did not have a fixed place of abode.  It was only in 2019 that he had a permanent address.  He had only collected the Board’s Decision about one week before the filing of the Leave Application upon notification for collection by an immigration officer. He was adamant that prior to that, he never received the Board’s Decision prior to that.  

17.  In my view, the applicant’s explanation is credible.  I believe that it is likely that the applicant did not receive the Board’s Decision, which was sent to the above‑mentioned Tong Fuk Correctional Institution as stated in the covering letter.  As evidenced by the Recognizance Certificate the applicant showed to this court, the applicant was no longer in Tong Fuk but had already been released on his own recognizance since February 2018.  In the circumstances, I find that the applicant has provided good reason for the substantial delay for the filing of the Leave Application.  Applying a high standard of fairness, this court should grant an extension of time to allow the late filing of the Leave Application.

Late filing of the notice of appeal to the Board

18.  In the present case, the Board rejected the applicant’s late notice of appeal without considering the merits of the appeal.  According to the Court of Appeal decisions referred to above, the “any other relevant matters of fact within the knowledge of the Board” under s27ZT (2) requires the Board to “take the merits of the applicant’s case into account” apart from the explanation for the delay:See Re Khan Kamal Ahmed [17]-[20].  In the present case, the Board stopped at the stage of reason for delay.

19.  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. By having failed to examine the merits, the Board has failed to take into account relevant facts or circumstances.  Thus, it 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. 

Conclusion

20.  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.

21.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that he 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 the respondent and the Director as the 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

Form CALL-1