SHERPA RENJAL v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 855/2020

[2025] HKCFI 5170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 855 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 Form 86 be amended on the Court’s own motion to name only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and to add “/Member of Non-Refoulement Claims Petition office” after the words “Adjudicator of TCAB”.

2.  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 8 May 2020 (“Form 86”), and a supporting affirmation also dated and filed on 8 May 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) which was also one of Non-Refoulement Claims Petition Office (“NRCPO”), dated 2 February 2016 (“TCAB Decision”)[1].

2.  The Applicant sought and appeared at the oral hearing of his application on 9 June 2025 and made some oral submissions. I then issued directions given the unavailability of the Second Letter (defined below) at the hearing, including adjourning the hearing to 11 August 2025, and that the Applicant file affirmation evidence before then. I have outlined and further dealt with such matters below.

3.  I have amended the Form 86 to properly identify the putative respondent, and the nature of the TCAB Decision. 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, and in the Director’s Decision (defined below). I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by three gangsters who were the supporters of the Gorkha National Liberation Front (“GNLF”) in his village due to a monetary dispute, and boycotted by society in his area as he could not repay the Municipal Corporation by order of the Village Council;

b.  The claim was initially advanced by way of a written representation in 2007, before being dealt with as a non-refoulement claim under the USM from 2014 onward. It was assessed and rejected on the basis of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4], by the Director of Immigration (“Director”) in a decision dated 30 April 2015 (“Director’s Decision”);

c.  On 13 May 2015, the Applicant appealed/petitioned to the TCAB/NRCPO for relief;

d.  However, the Applicant subsequently submitted a letter to the TCAB/NRCPO (“Withdrawal Letter”) dated 28 January 2016 which stated “I Sherpa Renjal would like to withdraw my appeal/petition because I am safe to return to my country, India.”; and

e.  The TCAB/NRCPO issued the TCAB Decision on 2 February 2016, in which it referred to the Withdrawal Letter, noted that the Applicant had decided to withdraw his appeal/petition, directed that the appeal/petition was dismissed “on the ground that the contemplated risks were no longer in existence”, and confirmed the Director’s Decision. It also stated that his appeal had been disposed of and finally determined, and the scheduled oral hearing vacated.

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:

a.  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[5] (iii) the merits of the substantive application[6] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  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;

c.  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

d.  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 date of the TCAB Decision, and over 4 years 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 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, whether in the Form 86 or in the Affirmation. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or 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. Having done so, I see no reasonable argument that there is any reasonable argument that there is a public law error in the TCAB Decision, let alone one that would justify the grant of leave in relation thereto.

12.  First of all, the TCAB Decision clearly dismissed the appeal based on the Applicant’s withdrawal of his appeal/petition, as and for reasons contained in the Applicant’s Withdrawal Letter. As the Applicant confirmed to me at the June hearing, at the time he signed and submitted the Withdrawal Letter he wanted to withdraw his appeal/petition, which decision was made on the basis of the information known to him at the time, including information from a friend from the same village that it was possible for him to return and that it would not be as dangerous, and as he wanted to visit his mother who was fighting cancer. He also confirmed to me at the June hearing that he had written the Withdrawal Letter of his own free will, and that when he wrote and signed it he had made a deliberate and informed decision to withdraw his appeal to the TCAB/NRCPO.

13.  In the circumstances, the Withdrawal Letter was hence a valid withdrawal underlying the TCAB Decision, which was made a few days later. The TCAB/NRCPO was entitled to therein dismiss the appeal upon such valid withdrawal or abandonment, and the appeal had hence been disposed of, finally determined, and was no longer extant, with the TCAB/NRCPO becoming functus officio (Ali Usman [2018] HKCA 955 and Das Purnima [2019] HKCA 669 and [2019] HKCA 867, both approving HT (Hussain Tasawar v Betty Kwan [2017] 2 HKLRD 567; Javed Zakir [2025] HKCA 669 at §§13-14).

14.  I also do not see that the validity of such withdrawal (and hence the attendant dismissal) of the appeal, or the merits of the leave application, are affected by the contents of a letter dated 16 February 2016 (“Second Letter”)[7], which was only written and submitted on that date only to the Department of Immigration (and not, as the Applicant admitted at the June hearing, to the TCAB/NRCPO at any point), in which the Applicant claimed he did “not want to go back to India now. Because [his] life was still in danger” and said “I want to apply for re-opening my appeal. I will go to the TCAB myself”. The contents of the Second Letter did not contest the validity of the Applicant’s earlier withdrawal of his appeal/petition by the Withdrawal Letter, or of the TCAB Decision, and I do not see that his subsequent change of his mind invalidates his earlier withdrawal of his appeal:

a.  The Applicant initially claimed at the June hearing (at which point no copy of the Second Letter had been produced to the court, and its actual date was hence unknown) that the Second Letter was written on the date it was submitted since that day, his case officer from the Department of Immigration had told him that if he wanted to leave, his application for a dependent visa would be cancelled and he would be blacklisted and unable to return to Hong Kong. Later in the hearing, he added that another reason he had submitted the Second Letter was because on some unspecified date after the Withdrawal Letter, but before the date of the Second Letter, another “friend from [his] village” said to be named Dawa Lama had “informed [him] that his life was still in danger.” However, he did not identify the basis of such information and claim, or why he did not have (or could not have found) such information when he earlier withdrew his appeal by way of the Withdrawal Letter;

b.  In any case, even if he apparently changed his mind after issuance of the Withdrawal Letter, I do not see how or accept that such was sufficient to invalidate his earlier, valid withdrawal of the appeal before the TCAB/NRCPO by the Withdrawal Letter. This is particularly so when this apparent change of mind was communicated only to the Department of Immigration in the Second Letter, some 2 weeks after the TCAB Decision had been made (which rendered the TCAB/NRCPO functus officio), and which Second Letter or change of mind was not communicated to the TCAB/NRCPO either before or after the TCAB Decision;

c.  At the June hearing, the Applicant also alleged (again without proof, let alone a copy of the Second Letter) that he had submitted the Second Letter to the Department of Immigration before he had received the TCAB Decision, and apparently within a week or so of his submission of the Withdrawal Letter to the TCAB/NRCPO. At the resumed hearing in August, the date of drafting and submission of the Second Letter was known and the Applicant did not further elaborate on his previous claim. If and insofar as such is maintained, I reject such given that the TCAB Decision was sent by post to the same address that the Applicant gave in his Notice of Appeal/Petition and there is no evidence to suggest that it was not received by and served on him on Thursday, 4 February 2016 (s. 37ZV Immigration Ordinance (CAP. 115)), and given also the date on which the Second Letter was drafted and submitted; and

d.  Yet further, and in any event, there is no evidence before me (and the Applicant has not claimed) that the Applicant actually asked the TCAB/NRCPO to re-open his appeal/petition either at the time of (including via) or after the Second Letter. Indeed, and on the contrary, the Applicant told me at the June hearing that he did not submit the Second Letter to the TCAB/NRCPO, and had not asked the Department of Immigration to send it to the TCAB/NRCPO.

(see Ali Usman, supra; Das Purnima, supra; Javed Zakir, supra)

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

16.  Secondly, there is substantial undue delay in this case as the leave application was filed over 4 years 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 Affirmation for the undue delay notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

17.  The only explanation that the Applicant gave me for the delay was that after he had submitted the Second Letter to the Department of Immigration, he had not been told anything about his case until his monthly signing-in with the Department of Immigration in around late April 2020 or early May 2020, when he claims he was told that his case had been closed and that he should file an appeal.

18.  I do not accept that this amounts to a credibly valid or acceptable reason for his substantial delay in applying for leave. As can be seen from the contents of the Second Letter, the Applicant was clearly aware that it was for him to take steps to advance and/or in relation to his non-refoulement claim, and in particular that he should go to the TCAB himself to try and re-open his appeal/petition. Yet there is absolutely no evidence (or even any submission) that he actually took any such action, whether in relation to any attempt to “re-open” his appeal, or indeed to apply for leave in relation to the TCAB Decision. The Applicant has clearly slept on the matter and, given the length of time that has elapsed, I am entitled to and would refuse the application for leave on the grounds of delay alone, even if the complaint were premised on strong grounds (which it is not).

19.  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, I would still exercise my discretion not to extend time, given the other matters herein.

Conclusion

20.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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