GURDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 100/2020

[2025] HKCFI 2990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 100 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and “Director of Immigration” be added as the putative interested party.

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 9 January 2020.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 23 June 2017.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 25 October 2019 and filed on 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 23 June 2017 (“the Board's 2^nd Decision”).

2.  In fact, the Board gave two decisions in respect of the applicant’s claim for non-refoulement protection. The Board’s 1^st Decision was dated 30 November 2012. Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000100_2020_files/1^st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000100_2020_files/2^nd_Board's_Decision.pdf

3.  The Board’s 1^st Decision was dealing with the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 19 September 2012 (“the Director’s 1^st Decision”). The Board’s 2^nd Decision was dealing with the applicant’s appeal/petition against the Director’s decision dated 14 December 2016 (“the Director’s 2^nd Decision”).

4.  In the Director’s 1^st Decision, the Director assessed and rejected the applicant’s torture claim made under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Claim”).

5.  The applicant petitioned against the Director’s 1^st Decision by filing a Notice of Petition on 3 October 2012.

6.  By the Board’s 1^st Decision, the Board dismissed the applicant’s petition. The Board agreed with the Director’s conclusion that the applicant’s case lacked merits as the applicant failed to establish a risk of severe pain or suffering from any public official or from persons acting at the instigation, with the consent or acquiescence of a public official acting in an official capacity.

7.  In the Director’s 2^nd Decision, the Director assessed the applicant’s non-refoulement claim under the Unified Screening Mechanism (“the USM”) on only two grounds, namely BOR 3 Risk[1] and Persecution Risk[2]. Torture Risk[3] was not assessed because the Torture Claim had previously been disposed of. The Director rejected the applicant’s non-refoulement claim. However, BOR 2 Risk[4] was not assessed at all.

8.  The applicant appealed/petitioned against the Director’s 2^nd Decision by filing a Notice of Appeal/Petition on 9 January 2017 (“the Notice), which was out of time for 10 days according to the Board’s calculation.

9.  In the Board’s 2^nd Decision, the Board refused the applicant’s application for late filing of the Notice.

10.  The Leave Application is only concerning the Board’s 2^nd Decision.

Amendments

11.  In Form 86, the applicant named “Hong Kong Immigration Department” as the putative respondent and did not name any putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

12.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

Late application

13.  Form 86 was filed on 9 January 2020, which was more than 30 months after the Board’s 2^nd Decision (made on 23 June 2017). By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s 2^nd Decision was made. The applicant was hence late for 27 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

14.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

15.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application on paper.

16.  At the oral hearing before this court on 8 July 2025, the applicant was asked to explain the substantial delay in the filing of the Leave Application. He claimed to have been arrested in late 2018 and was sentenced to 2 years’ imprisonment. His friend helped him to submit the Leave Application while he was serving sentence. This court reminded the applicant that the Board’s Decision was made in June 2017 and asked if he was in jail at that time. The applicant said he was not sure but he believed he was not. He did not file any leave application at that time because the Immigration officers did not tell him anything. He was not aware of the Board’s Decision until his friend told him so while he was in jail.

17.  The delay in the present case was substantial and the reasons the applicant provided were unsatisfactory. However, as discussed below, this court is of the view that there are merits in the Leave Application. Hence, this court will grant an extension of time to the applicant to file the Leave Application out of time on 9 January 2020.

The applicant’s case

18.  The applicant claimed for non-refoulement protection because if refouled to India, he would be hunted down by his girlfriend’s family which was rich and very active in politics. The girlfriend’s family did not approve their relationship because of the caste system in India.

19.  In the Board’s 2^nd Decision, there were no details of the applicant’s case as the Board did not consider the merits of the applicant’s non-refoulement claim at all.

20.  This court notes from the Board’s 1^st Decision that the fear that gave rise to the applicant’s torture claim was from the family members of his cousin’s girlfriend instead of from the family members of his own girlfriend.

Oral hearing

21.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 July 2025.

22.  At the hearing, apart from explaining the reasons for his late application, the applicant mentioned to this court that he still had problems in India. He wanted to submit documents to support his claims but he was in detention. This court asked him what documents he wanted to get, and whether those documents needed to be obtained from India. The applicant could not reply to this court because he needed to look for the documents. When asked if the documents were related to police reports, the applicant replied in the affirmative, and added that the documents were related to the dispute and the fight. He could obtain those documents by fax or post. However, he was only allowed to make one call per month while being detained in custody. So he could not ask his friends to obtain the documents for him. He used to have the documents at home but his landlord had thrown away his belongings. The applicant therefore asked this court to give him time to obtain the documents.

Grounds for judicial review

23.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

24.  However, the applicant only stated in Form 86 that his girlfriend in India was active in politics, and her family was against their relationship because of the caste system in India. He and his girlfriend had run away from her family but were caught by some people. Her family tried to hunt him down but he managed to escape and flee to Hong Kong.

25.  In his supporting affirmation dated 9 January 2020, the applicant merely said that he could not go back to his home country because his life was still in danger back in his home country.

Discussion

26.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

27.  Thus, this court cannot re-assess the applicant’s case regarding his alleged danger in his home country. Even if the applicant could submit the documents that could allegedly support his claims, this court will not usurp the role of the Board to make findings in relation to his claims. It is therefore not for this court to give the applicant time to locate the documents that he wanted to adduce.

28.  However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

29.  The Board first found that the delay of 10 days in filing a petition against the Director’s 2^nd Decision was a serious and significant failure to comply with the rules. The statement of reasons stated in the applicant’s application for late filing was that he received the letter (which should be the Director’s 2^nd Decision) on 29 December 2016, and he passed it to the welfare officer on the first working day after he got that letter. The Board did consider the applicant’s statement of reasons, but did not find the reason for late filing acceptable to explain why the applicant filed the Notice 10 days late.

30.  The Board then evaluated all the circumstances in the case and arrived at the conclusion that it was fair and just to refuse the applicant’s application. The Board found that there were no other matters known to it or revealed by the factual basis of the applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice. Hence, the Board refused the late filing of the Notice.

31.  However, the Board did not consider the merits of the applicant’s appeal/petition at all.

32.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

33.  In other words, in failing to consider the merits of the applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s 2^nd Decision.

34.  This court noticed that the adjudicator, Mr Li Wai-chi, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

35.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

36.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Li was indeed a member of the Board and did have the power to determine the applicant’s petition.

37.  Having rigorously examined the Board’s 2^nd Decision and the evidence with anxious scrutiny, this court finds that the Leave Application is reasonably arguable.

38.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s 2^nd Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

39.  For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 9 January 2020, and leave is granted for the applicant to apply for judicial review in respect of the Board’s 2^nd Decision.

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