ASHWANI KUMAR v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1056/2020

[2025] HKCFI 3147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1056 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 Applicant’s Form 86 be amended by naming the NRCPO as the putative respondent and the DI as the putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 1 June 2020 (“Form 86”), the Applicant applied for leave to commence judicial review proceedings against a decision of the Torture Claims Appeal Board (“TCAB”) dated 22 May 2020. A copy of the decision sought to be challenged, dated 22 May 2020, was exhibited to the supporting affirmation of the Form 86. From a reading of the same, it is obvious the decision sought to be challenged was actually made by an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) on 22 May 2020 (“NRCPO 2020 Decision”), as opposed to the TCAB.

2.  According to other documents available to the Court, the Applicant’s torture risk, persecution risk and the risk of violation of his right under Article 3 of the Hong Kong Bill of Rights (“BOR3”), should he return to his country of origin India, were previously assessed by an adjudicator sitting for both the TCAB and the NRCPO on 14 July 2017 (“TCAB/NRCPO 2017 Decision”). The Applicant had sought leave to commence judicial review against the TCAB/NRCPO 2017 Decision by another Form 86, of reference HCAL 866/2017, which had been dismissed.

3.  Separate from the process arising from the TCAB/NRCPO 2017 Decision, on 24 March 2017, the Director of Immigration (“DI”) on his own initiative assessed the risk of violation of the Applicant’s right under Article 2 of the Hong Kong Bill of Rights (“BOR2”) and invited the Applicant to submit additional fact/information for consideration. On 26 September 2017, the DI came to the assessment that the Applicant would not be subject to any real risk under BOR2 should he return to India. Dissatisfied with the DI’s assessment on that, the Applicant sought to petition to the NRCPO, but the filing of the petition, on 16 November 2017, was late.

4.  At that time, the relevant procedure was governed by “The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme” (5^th edition, 28 August 2019) (“the Petition Guide 2019”). Under paragraph 8.1 of the Petition Guide 2019, the Applicant must file his petition within 14 days after the DI’s BOR2 decision was given to him, but the paragraph went on to say, in this regard, “late filing of the petition may be allowed by the Adjudicator if he is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice”.

5.  The essence of the NRCPO 2020 Decision was to refuse the Applicant’s late filing of the petition against the DI’s BOR2 decision. The present challenge against the NRCPO 2020 Decision is different from a challenge against the TCAB/NRCPO 2017 Decision under HCAL 866/2017.

6.  In these circumstances, the Applicant was wrong in naming the TCAB as the putative respondent. On my own motion, I amended the Form 86 by naming the NRCPO as the putative respondent and additionally the DI as putative interested party.

7.  From a reading of the NRCPO 2020 Decision, the NRCPO’s adjudicator rightly recognized the power he had in allowing late filing of petition under paragraph 9.2 of the Petition Guide 2019. He referred to the facts that the DI’s BOR2 decision was issued to the Duty Lawyer Service (“DLS”), which represented the Applicant in that BOR2 process, on 26 September 2017 and the DLS had acknowledged receipt of the same.

8.  The adjudicator further said the Applicant was unable to put forward a reasonable explanation why he could not receive a copy of the DI’s BOR2 decision and submit a petition within the 14-day filing period, and there was no suggestion of a change of address. The extent of the delay was also considered.

9.  The adjudicator then looked into the merits of the Applicant’s case on BOR2 briefly and found that, in fact, no fact/information in addition to those analysed under the TCAB/NRCPO 2017 Decision had been provided by the Applicant to advance a different factual assessment engaging BOR2. The Applicant merely stated that he wished to have his “USM case” (meaning his claim submitted under the unified screening mechanism) reviewed and said there would be “some proof”, but nothing about such proof had been specified; nor did the Applicant explain when the proof would be produced. The NRCPO thus concluded that there was no justification to accept the late filing of the petition.

10.  I have reviewed the NRCPO 2020 Decision vigorously, but do not find any errors of law, irrationality or procedural unfairness in it. In my judgment, it was well within the NRCPO’s power to refuse late filing of the petition in the circumstances of the present case. The NRCPO has considered and applied the policy under paragraphs 9.1-9.4 of the Petition Guide 2019, which mirrored the provisions under section 37ZT of the Immigration Ordinance (Cap. 115) concerning how the TCAB should handle late filing of appeal on torture risk. In particular, the NRCPO adjudicator has considered relevant matter within his knowledge including the potential merits of the Applicant’s BOR2 petition and the fact that no additional fact/information had been provided. The Applicant has also put forward no ground of judicial review in the present Form 86 or the supporting affirmation. The proposed judicial review is not reasonably arguable. The leave application is thus dismissed.

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