LAKHVIR SINGH v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1085/2020

[2025] HKCFI 3149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1085 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 Applicant’s Form 86 be amended by naming the NRCPO as the putative respondent and the DI as the putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 3 June 2020 (“Form 86”), the Applicant purportedly applied for leave to commence judicial review proceedings against a decision of the Torture Claims Appeal Board (“TCAB”) dated 27 April 2020. A copy of the decision sought to be challenged, dated 27 April 2020, was exhibited to the supporting affirmation of the Form 86. From a reading of the same, the decision sought to be challenged was actually made by an Adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) on 27 April 2020 (“NRCPO’s 2020 Decision”).

2.  In essence, the NRCPO’s 2020 Decision was a refusal to allow the filing of the Applicant’s petition against the Director of Immigration (“DI”)’s assessment about the Applicant’s risk of having his right under Article 2 of the Hong Kong Bill of Rights (“BOR2”) violated should he return to India (his country of origin). The DI’s BOR2 assessment was made on 7 February 2017 and will be called the “DI’s 2017 BOR2 Decision” in the following. Technically, the NRCPO’s 2020 Decision refusing to admit a BOR2 petition was not a decision made by the TCAB.

3.  According to other documents available to the Court, the Applicant’s torture risk, persecution risk and the risk of violation of his right under Article 3 of the Hong Kong Bill of Rights (“BOR3”) were previously assessed by the same Adjudicator sitting for both the TCAB and the NRCPO in a decision issued on 1 November 2016 (“TCAB/NRCPO’s 2016 Decision”). That decision is not the subject of the present judicial review. For the present purpose, it is sufficient to state that the Applicant’s non-refoulement claim was based on alleged risk of being killed/harmed by his ex-girlfriend’s father and/or brother as they held the Applicant responsible for the girlfriend’s suicide in November 2012.

4.  By reason of the above, it was wrong for the Applicant to name the TCAB as the putative respondent in the present Form 86. On my own motion, I amended the Form 86 by naming the NRCPO as the putative respondent and the DI as the putative interested party.

5.  Back to how the NRCPO’s 2020 Decision came into being, the history was that the DI, on his own volition, assessed the Applicant’s BOR2 risk after the TCAB/NRCPO’s 2016 Decision. The DI’s 2017 BOR2 Decision on 7 February 2017 was that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable right under BOR2 being violated upon his return to India. There, the DI mentioned that the Applicant had not provided any additional materials or facts on any absolute and non-derogable rights under the Hong Kong Bill of Rights other than the BOR3 risk which had been assessed in the TCAB/NRCPO’s 2016 Decision.

6.  The Applicant tried to submit his petition against the DI’s 2017 BOR2 Decision to the NRCPO on 8 March 2017, which was late. At that time, the procedure relevant to the filing of petition was governed by “The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme” (5^th edition, 28 August 2019) (“the Petition Guide 2019”). Under paragraph 8.1 of the Petition Guide 2019, the Applicant must file his petition within 14 days after the DI’s decision was given to him. The attempt to file the petition was thus around 2 weeks late. Paragraph 8.1 went on to say, in this regard, “late filing of the petition may be allowed by the Adjudicator if he is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice”.

7.  Paragraphs 9.1-9.4 of the Petition Guide 2019 further set out how the discretion to allow late filing of petition should be exercised. Those paragraphs mirror the requirements under the then prevailing version of section 37ZT(1)-(4) of the Immigration Ordinance (Cap. 115) (“IO”). In the NRCPO’s 2020 Decision, the Adjudicator applied section 37ZT instead of provisions in the Petition Guide 2019 to guide his exercise of discretion. As the principles (and all the material texts) were the same, I do not find the reference to the IO provisions problematic, see for example Singh v Secretary of State for the Home Department [2017] 1 WLR 4340.

8.  In the NRCPO’s 2020 Decision, the Adjudicator recognized that he had a discretion to accept late filing of petition. According to section 37ZT(2) of the IO, the equivalent of paragraph 9.2 of the Petition Guide 2019, the Adjudicator must decide, as a preliminary decision without a hearing, whether he allowed the late filing of the notice of appeal/petition. In doing so, the Adjudicator might only take account of (a) the statement of reasons stated in the application for late filing and any accompanying documentary evidence relied on in support of those reasons and (b) any other relevant matters of fact within his knowledge.

9.  According to section 37ZT(3) of the IO, the equivalent of paragraph 9.3 of the Petition Guide 2019, if the Adjudicator was satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal/petition, the Adjudicator might allow the late filing of the notice.

10.  In the statement of reasons for late filing, the Applicant said “[b]ecause I got this letter late on 7/3/2017, that is why I am late. I feel sorry”. That alone, certainly, was not enough for the discretion to accept late filing to be exercised in the Applicant’s favour. There was no further explanation from the Applicant as to how he got the DI’s 2017 BOR2 Decision late.

11.  The Adjudicator noted that the address the Applicant previously used to communicate with the DI was situated in Kwun Tong, whereas the address he used when seeking to file the petition on 8 March 2017 was situated in Yau Ma Tei. The Adjudicator came to the view that, apparently, the Applicant’s failure to receive a copy of the DI’s 2017 BOR2 Decision was caused by his failure to inform the DI of his change of address. He said reporting a change of address was the Applicant’s duty.

12.  In the oral hearing before me, the Applicant admitted he had changed his address from the one situated in Kwun Tong to the one situated in Yau Ma Tei. He said he had been detained for a period in years 2015-2016. After release from detention, he lived in the Kwun Tong address for around 15 to 20 days, and later moved to the Yau Ma Tei address. He obtained a copy of the DI’s 2017 BOR2 Decision from a person sharing the Kwun Tong address with him, and was thus able to seek late submission of the petition on 8 March 2017.

13.  In view of the shortness of time between the expiry of the 14-day petition period (on 21 February 2017) and the Applicant’s attempt to seek late filing (on 8 March 2017), it seems to me the Adjudicator should have enquired into when the Applicant changed address and what measures he took to ensure that he would be informed of any decision to be made by the DI. Moreover, the Duty Lawyer Service (“DLS”) was apparently copied the DI’s 2017 BOR2 Decision (according to a copy of the same available to this Court), but there was no information from the NRCPO’s 2020 Decision as to whether the DLS was acting for the Applicant in the BOR2 process and whether it had indeed received a copy of the DI’s 2017 BOR2 Decision.

14.  In such circumstances, a reasoning based solely on the Applicant’s failure to report change of address without further inquiry was, in my view, procedurally unfair. In addition, the Adjudicator did not consider the merits of the Applicant’s BOR2 petition when refusing to allow late filing. At that time, the prevailing text of section 37ZT(2) of the IO and paragraph 9.2 of the Petition Guide 2019 both required the Adjudicator to have regard to relevant matters of fact within his knowledge, especially when he was the same adjudicator giving the TCAB/NRCPO’s 2016 Decision. According to Re Villarosa Rhea Limbaga [2024] HKCA 95 and Re Qasim Ali [2019] HKCA 430, the Adjudicator’s omission in this regard amounts to another aspect of procedural irregularity in the NRCPO’s 2020 Decision.

15.  Notwithstanding the aforesaid shortcomings of the NRCPO’s 2020 Decision, in my judgment, the proposed judicial review is not reasonably arguable. This is because the Applicant had not provided any additional facts/materials requiring a separate analysis on BOR2 in the process leading to the DI’s 2017 BOR2 Decision. The lack of additional facts/materials was not controverted by the Applicant in the subsequent process and this leave application. Even when seeking to file the notice of appeal/petition out of time in March 2017, the Applicant did not provide any additional facts/materials. There, he said “[w]hatever happened to me there, I have already told you, which is the reason why I cannot go back to India … I beg to this case officer of mine to investigate my case again”.

16.  The BOR2 process was not to reinvestigate the matters covered in the TCAB/NRCPO’s 2016 Decision. In Karun Kumar v TCAB/NRCPO [2022] HKCA 562, the Court of Appeal stated that:

“25. It is trite that judicial review is a discretionary remedy. The court does not act in vain. The [first instance Judge handling the judicial review leave application] considered that since the applicant adduced no additional information in relation to the BOR 2 risk, his claim was bound to be rejected in relation to BOR 2 risk just as it had been rejected in relation to the other three risks by the Director and the Board. The applicant did not apply for judicial review of the decision in relation to the other three risks. There was no prospect of overturning the Director’s further decision on BOR 2 risk. The applicant did not suffer any prejudice from the Board’s failure to consider the merits in deciding to reject his late filing of the notice of appeal. On this basis the Judge was entitled to refuse leave for judicial review, even though the Board apparently took an approach which was deficient in law.

26. The applicant has failed to pinpoint any error in the Judge’s reasoning. The decision seems to us to be entirely within the discretion of the Judge. The applicant’s written submissions for the present application fail to demonstrate any ground for vitiating the Judge’s exercise of discretion. The allegation that the Board failed to give him a sufficient chance to arrange for relevant evidence for his claims is unsubstantiated; the applicant did not submit any further information in relation to BOR 2 risk when invited by the Director to do so. The complaint that the Board had relied on unofficial sources of news or hearsay seems wholly unconnected to the subject matter of the intended judicial review application, i.e. Board’s decision of 23 August 2018.”

17.  In my judgment, the Court would only grant relief if any procedural error/impropriety has materially affected the conclusion of the decision and the relief granted would serve a useful purpose. The test of “materiality” is one of inevitability, i.e. an error is immaterial if the decision would inevitably have been the same, see Fordham, Judicial Review Handbook (7^th ed), paragraph 4.2. In the present case, because of the Applicant’s lack of any additional facts/materials to show that he might be subject to any BOR2 risk which had not been assessed in the TCAB/NRCPO’s 2016 Decision, I am unable to find it reasonably arguable that he should be granted any discretionary public law remedies. Even if his petition dated 8 March 2017 had been admitted and there was a further process inquiring into his BOR2 risk, the result would be inevitably the same – there would be no non-refoulement protection based on BOR2 risk as he did not even seek to substantiate any before the DI’s 2017 BOR2 Decision and the NRCPO’s 2020 Decision were made. In this connection, I should emphasize this is not an application to seek leave to judicially review the TCAB/NRCPO’s 2016 Decision.

18.  I have looked into the facts related to this application anxiously, but I am still driven to the conclusion that the present leave application should 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