GURUNG PURNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1979/2020

[2025] HKCFI 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1979 of 2020

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 the documents and oral submissions by the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be 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 30 September 2020 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 24 April 2014 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 January 2014 (the “Notice”) refusing his application for non-refoulement protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”).

2.  The Applicant is an Indian national, now aged 53. His wife and daughter are now living in Hong Kong, while his son is living in Nepal. His case is that he had been assaulted by some Maoists in February and August 2004 and on each occasion he was forced to keep some firearms, weapons and bombs for them. He was also told by his friend that the Indian police were looking for him because of his suspected involvement with the Maoists. Out of fear of the Maoists and fear of arrest by the Indian police, he fled to Hong Kong.

3.  The Applicant had requested an oral hearing. However, by the time his leave application came to be processed, he had been removed from Hong Kong. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

4.  However, in his supporting affirmation he also sought to apply for leave to apply for judicial review of the Director’s decision in the Notice. In the circumstances, the Applicant’s intention to review the Notice cannot be entertained. The Court could only consider his leave application as regards the Decision. There is therefore no need to amend his Form 86 to include the Notice as one of the subject matters of his leave application.

The delay

5.  The leave application was filed seventy-seven months and six 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, the leave application was made more than seventy-four months out of time. Extension of time to file the leave application is required.

6.  In AW and Director of Immigration and William Lam[1], 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 in 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[2], per Litton PJ. The delay in this case is so 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.  In his supporting affirmation dated 30 September 2020, the Applicant acknowledged that the time to apply for judicial review had long lapsed. His explanation for the delay is that he had been advised by “an immigration officer to lodge an application to apply for leave against the decision of the Director of Immigration and [the Board] without first exhausting all means of appeal, namely, by first appealing to [the Board].[3]” He submitted that “given the technical difficulty [he] cannot lodge a leave to apply for judicial review until [he has] explored the appeal stage at [the Board] made the same findings with the Director of Immigration,” he should be allowed to seek judicial review against both authorities.

8.  His explanation and arguments are circular, muddled and wrong. As a matter of law, while the Decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board: Re Moshsin Ali[4]. As a matter of fact, the Applicant had invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review. At the time of filing of his leave application and supporting affirmation, the Director had made his decision in the Notice, the Applicant had appealed, and his appeal had been dismissed by the Board. The decision in the Notice was superseded by the Board’s Decision. The Applicant may not apply for judicial review of the Notice. There is nothing waiting to be decided by the Board. There is no such technical difficulty as he alleged. His leave application was simply filed out of time and he has offered no reasonable explanation for the very substantial delay.

9.  A person in genuine fear for his safety if refouled would have wasted no time to apply as this is his last opportunity before exhausting all available legal remedies. His 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. For these reasons, there is no need to consider the merits of his leave application. Extension of time to file the leave application is refused. His leave application is also dismissed for want of prosecution.

Conclusion

10.  For the above reasons, the Applicant’s application for leave to apply for extension of time to file the leave application and the leave application are refused.

11.  The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.

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