SUKHWINDER MASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 310/2021

[2026] HKCFI 2119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 310 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Extension of time to file the Form 86 is refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 12 April 2018 (the “Second Decision”).

2.  The Applicant arrived at Hong Kong on 22 September 2006 and went to Mainland China. He re-entered Hong Kong on 5 October 2006 and overstayed since 20 October 2006. After his arrest, he filed a non-refoulement claim by written signification on 2 October 2008. His claim was assessed and dismissed by the Director of Immigration (the “Director”) under Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds. His appeal against the Director’s decision under these grounds was dismissed by the Board’s decision dated 28 October 2016 (the “First Decision”). His claim was further assessed under BOR 2 Risk[4] ground and dismissed by the Director. His appeal against the Director’s decision under this ground was dismissed by the Board’s Second Decision. He now seeks leave to apply for judicial review of the Second Decision but not the First Decision.

3.  The Applicant is an Indian national, now aged 38. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [5] for reference. In gist, he claims he will be harmed by the Hindu community because of his Christian faith and support for the National Congress Party.

4.  However, his Form 86 was filed 34 months and 27 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was not promptly made. Usually, an application made three months after the date of the decision sought to be reviewed is deemed not to have been made promptly. Extension of time to file the Form 86 is required. Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant offered no explanation in the Form 86 or his supporting affirmation.

5.  At the hearing, after the law applicable to late filing of application for judicial review had been explained, the Court explored the explanation of late filing with him. His explanation is that he had never received the Second Decision. He married in Hong Kong on 3 September 2019. A week after that, he went with his wife to a lawyer’s office in Jordan about applying for a dependent visa. He gave all the documents he had to a “Punjabi guy” whom he thought was a lawyer. He was told by that “Punjabi guy” that his “case was over”, ie his non-refoulement claim was over. That was in September 2019, a week after his marriage. The Second Decision was issued on 12 April 2018. Thus, it is clear that the Applicant had received the Second Decision well before seeking the services of this “Punjabi guy” in September 2019. On his own admission, he had the Second Decision for about a year and half before getting married and before instructing the “Punjabi guy” to apply for dependent visa for him and so on. What he did not do was to apply for judicial review of the Second Decision. Not only that, even after he was told by the “Punjabi guy” that his claim was over, he still sat on it for another year and half before he filed the Form 86. He had no explanation for the very inordinate delay.

6.  In AW and Director of Immigration and William Lam[6], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[7], per Litton PJ. The delay in this case is very substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

7.  As the Applicant has no explanation for the very inordinate delay, the Court could have no factual basis on which to exercise its discretion to grant him extension of time to file the leave application. On the other hand, a person in genuine fear for his safety if refouled would have wasted no time to apply as this is his last opportunity to challenge the Board’s decision. The Applicant’s unexplained delay not only evinced a lack of intention to prosecute his leave application, but also reflects an underlying lack of merits in his leave application and his non-refoulement claim. His conduct resulted in delay in his refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process. Having examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant him extension of time to file the leave application. Thus, extension of time to file the leave application is refused under the principle in Po Fun Chan v Winnie Cheung without considering the merits of his leave application.

Conclusion

8.  For the above reasons, extension of time to file the leave application and the leave application are refused.

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