GURSHER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 985/2020

[2025] HKCFI 2938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 985 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.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 May 2020 (“Board’s Decision”).  In that decision, the Board rejected the late filing of the applicant's Board appeal against a decision of the Director of Immigration (“Director”) dated 23 July 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000985_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named both the Board and the Director as the proposed respondents as well as the interested parties.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly.

3.  The basis of the applicant’s claim was that he would be harmed or killed by the supporters of the Congress Party due to his support for the rival Akali Dal Party. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 27 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his supporting affirmation for his Form 86, the applicant stated a number of complaints or grounds in support of the Leave Application. Most of the grounds/complaints are either repetitive or unrelated to the Board’s Decision.  For brevity, I will summarize the grounds only concern the Board’s Decision as follows.

(1)  The Board refused to hear his case and he was not given an opportunity to explain to the Board (at [11] –[12] ).

(2)  It is procedurally unfair that the Board’s Decision was written in English and that it has never been read or translated to him in his first language (at [13] –[15] ).

8.  At the hearing, this court asked the applicant whether he had any further grounds to add to had already stated in his supporting affirmation.  The Applicant then told this court that the grounds in the contents of the supporting affirmation were not explained to him. The applicant explained that he paid $1,500 through a friend to engage legal services to help him to prepare the papers.  He was simply asked to append his signatures in the papers without the contents being explained.

9.  In light of what the applicant had stated, the court told him that he could not therefore rely on the affirmation to support his Leave Application. I asked him whether he had any grounds to advance from his own words.  The applicant then said he had nothing to say.

10.  According to the Board’s Decision, the applicant’s appeal to the Board against the Director’s Decision was late for 11 months and 10 days.  Pursuant to s.37ZT(2) of the Immigration Ordinance[3], which provided that the Board could decide the preliminary issue as to whether to allow the applicant’s late filing of the notice of appeal without a hearing, the Board considered the applicant’s late filing of the Notice of Appeal to the Board on paper. 

11.  In the Board’s Decision, the Board had referred to the relevant provision of s.37ZT, which statutorily required the applicant to include with his notice of appeal “a statement of the reasons for failing to file the notice” on time and documentary evidence relied on in support of the reasons.  The Board had taken into account the matters listed in s.37ZT(2)(a) & (b) requiring the Board to consider (i) the statement of reasons for the late filing; (ii) any supporting  documentary evidence; and (iii) any other relevant matter of fact within the knowledge of the Board.

12.  After having considered that the applicant had not provided any reason for the delay, and the absence of any documentary evidence, the basis of his claim as well as the applicant’s grounds in support of his Notice of Appeal stating that “there were no changes in his case documents, and his life was still in danger in his home country because of the ruling party”, the Board refused the applicant’s application for the late filing of the Notice of Appeal.

Applicable legal principles governing

(a)  Late filing of notice of appeal to the Board under s.37ZT

13.  Notwithstanding the amendments on 1 August 2021 to s. 37ZT (2), the case law interpreting them will still apply in this case.  In Re Khan Kamal Ahmed[4] and Re Qasim Ali[5] , the Court of Appeal held that under s. 37ZT (2)(b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20].  Recently, the Court of Appeal in Re Doyaoen Josephine Biba[6] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2^nd Decision on BOR 2 risk.  Hence, the Court of Appeal’s decision in that case can be distinguished.

(b)  Judicial Review

14.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[7]

15.  In the present case, the Board rejected the applicant’s late notice of appeal without discussing or considering the merits of the appeal.  According to the Court of Appeal decisions referred to above, the “any other relevant matters of fact within the knowledge of the Board” under s.37ZT (2) requires the Board to “take the merits of the applicant’s case into account” apart from the explanation for the delay:See Re Khan Kamal Ahmed [17]-[20]. In the present case, the Board stopped at the stage of reason for delay.

16.  At the end of [17] in the Board’s Decision, the Board stated:

“…The Director had carefully considered his claim and gave full reasons for his decision. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.”

17.  However, in the Board’s Decision there is no mention or reference to the merits of the applicant’s claim.  Thus, it would not be apparent to an objective reader of the Board’s Decision whether the Board had in fact considered the merits of the applicant’s claim.

18.  As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend time for appeal is vested in the Board.  A high standard of fairness obliges the Board to undertake an examination of the merits.  Thus, the Board’s failure to take into account relevant facts or circumstances.  Thus, it is reasonably arguable that the Board’s Decision was erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness.

Conclusion

19.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  There is a realistic prospect of success in the intended judicial review.

Orders

20.  The Form 86 be amended on the court’s own motion.

21.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

22.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Postscript

23.  Before hearing this case, the court also heard another challenge against a Board’s decision in HCAL 984/2020.  Similar to what the applicant had told this court in this case about the hiring of a lawyer who prepared the alleged grounds/complaints in the supporting affirmation without explaining the contents to the applicant, the applicant’s affirmation in that case was also prepared in a very similar circumstance.  It is observed that the contents of the supporting affirmations in both these cases are very similar.

24.  These matters have caused this court concern as to whether the preparations of the legal documents might have been unlawful illegal practices. I will therefore direct my clerk to provide a copy of the decision of this case as well as HCAL984/2020 to the Secretary of Justice for his further inquiry into the matters.

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