CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1369 of 2020
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BETWEEN
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GODHANIYA HAJA SAMAT |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-Refoulement Claims Petition Office |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:
1. The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “5 June 2019” in place of the words “15-June-2020”; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. The Applicant is a national of India. By a Form 86 filed on 2 July 2020 (“Form 86”), which was accompanied by a supporting affirmation also filed on 2 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision, said by him in the Form 86 to be one of the Torture Claims Appeal Board (“TCAB”) dated 15 June 2020. However, there was no decision dated 15 June 2020 relating to the Applicant, nor was any decision exhibited to the Affirmation.
2. The Applicant sought and attended the oral hearing of his application on 3 September 2025. He confirmed to me that the decision in relation which he sought leave was one, relating to him, of the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”) dated 5 June 2019 (“TCAB Decision”)[1]. He made some further submissions which I set out below.
3. I have therefore amended the Form 86 of my own motion to reflect that leave is sought in relation to the TCAB Decision, as well as the identities of the proper Putative Respondent and Putative Interested Party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.
Background
4. This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary:
(1) The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by one Chanabhai;
(2) The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director in a decision dated 19 March 2018 (“Director’s Decision”);
(3) The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 16 January 2019; and
(4) The TCAB/NRCPO issued the TCAB Decision dated 5 June 2019, in which it found that the Applicant had failed to make out any of his claims for non-refoulement relief, rejected the appeal/petition, and confirmed the Director’s Decision.
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 2013, 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 (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 9 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 Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. The latter only mentions that he “object the [TCAB Decision]” and asks for his case to be re-opened and reviewed again. There are hence no allegations of procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.
11. Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application 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.
12. The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, matters leading up to the hearing, the general conduct and nature of such, the basis of the Applicant’s claim and the account advanced by the Applicant in support of such, and summarised the Director’s Decision as well as the contents of the Applicant’s Notice of Appeal/Petition (Paragraphs 1 to 31).
13. The decision-maker then went on to summarise the evidence provided and claims made by the Applicant at the hearing, including the Applicant’s failure to provide further documentation after the hearing. Having considered all of the available evidence the TCAB/NRCPO concluded that there was no evidence that could justify the Applicant’s fear that he might be killed or ill-treated if returned to India, and that there was no cogent evidence to support the inference that Chanabhai might resort to violence against the Applicant in the future. As to his alleged fear of being investigated by the Indian Police, this was part of their statutory duty to investigate what the Applicant had said, and it was legitimate for them to try and look for the Applicant, there being also no indication that they had any ulterior motive to locate him or that their purpose was to harm him. The Applicant could not use refugee protection to avoid legitimate police investigation for a criminal complaint. Moreover, state protection was available and internal relocation was available, reasonable, and would not be unduly harsh. None of Torture Risk, BOR 3 Risk, and Persecution Risk were made out given not only the above, but also given consideration of relevant factors such as the lack of state involvement and passive acquiescence, the risk of harm, and the lack of a Refugee Convention reason. BOR 2 Risk was said to be not relevant. Accordingly, the claims failed, the appeal/petition was rejected, and the Director’s Decision confirmed (Paragraphs 32 to 81).
14. I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was 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 is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, and BOR 3 Risk. While the TCAB/NRCPO appears to have taken too narrow a view of BOR 2 Risk, it is not reasonably arguable that it would have come to a different conclusion even if it had accepted that such could be engaged where the risk was posed by non-State actors and private persons, given that the Applicant had failed to establish BOR 3 Risk, the underlying findings (in particular those relating to the risk of harm and state protection) relating to such, and the lack of any public law basis to vitiate such. I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).
15. The Applicant claimed before me that his life was still in danger and at risk if he were sent back, that his friends who were returned had been “either murdered or brutally harassed” by the people who posed the risk to him, that he needed protection in Hong Kong, that as he had experienced harassment in India he had come here for protection, and that I could see “what had happened” to him. Given the findings in and nature of the TCAB Decision[8], and the nature of judicial review, I do not see that such bare and unsupported allegations are relevant to the merits of his leave application.
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 9 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.
18. The Applicant claimed before me that it was only on 2 July 2020 that he was told by staff of the Director that he could now go and file the judicial review and that he had “repeatedly” asked them where was his decision so that he could apply for judicial review, to which they had responded that they were “releasing [him] anyway so it doesn’t matter”. However, he also told me that at the oral hearing before the TCAB/NRCPO he had given the latter an address at 128 Cheung Sha Wan Road, which was where he had resided throughout 2019 to 2020. When I pointed out to him that in the usual course of events the TCAB Decision would hence have been sent to him at that address, he claimed that he did not remember, and referred instead to how he had changed address in 2022. He did not have anything else to say in relation to the issue of delay.
19. I do not accept that I have been given an acceptable explanation for the delay. The TCAB Decision have in the usual course of events have been sent to the address which the Applicant says he gave to the TCAB/NRCPO at the oral hearing, and I do not see that there is sufficiently cogent and credible evidence to rebut the presumption in s. 37ZV(3) Immigration Ordinance (CAP. 115), particularly when I do not accept his bare assertion that it was only in July 2020 that he learnt about the TCAB Decision.
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 made the orders above, including that the application for leave to apply for judicial review be dismissed.
Dated the 5th day of March 2026
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(Teresa Ng)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 5 March 2026
GODHANIYA HAJA SAMAT
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5 March 2026
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11273/18/4/283/IN2191
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 337/18 (Formerly RBCZ 11967/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001369_2020_files/the_Board's_Decision.pdf
[2] The risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] The risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] The risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] In that the presence of a credibly valid explanation for the delay will strengthen, and the absence of an acceptable explanation will weaken, the Applicant’s request for what is an indulgence to be granted in the court’s discretion.
[7] Although where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be, and an applicant who sleeps upon his rights may be barred from pursuing them in a judicial review even though he may have a meritorious case (AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §27(iii) as approved in the other cases cited below, in particular H v Director of Immigration (2020) 23 HKCFAR 248 at supra at §37(2)).
[8] Wherein the Applicant had acknowledged to the TCAB/NRCPO that Chanabhai or his son had never hurt him physically, and had never used, directly or indirectly, any kind of violence against the Applicant or his mother (Paragraphs 11d., 38).