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HCAL 2073/2020
[2025] HKCFI 5910
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2073 of 2020
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BETWEEN
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Kalwinder |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
1. The extension of time for the application for Judicial Review be refused; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 22 February 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 22 May 2019. His application was filed on 16 October 2020, which is late for more than 1 year and 4 months. This issue will be dealt with below.
2. The applicant did not ask for a hearing. He appeared before the Court on 26 November 2025.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of India. He is an illegal immigrant for the reason that he came to Hong Kong on 3 May 2011 as a visitor, but he overstayed since 18 May 2011. He was arrested. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his brother Jeet and his brother’s son Sabhi due to a land dispute. He was attacked by them with weapon and a pistol.
5. Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002073_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. The applicant had raised a torture claim with the Director, who dismissed his claim. He appeal to the Board, which dismissed his appeal. The Director considered the applicant’s claim in relation to the following risks:
a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. The Director, by Notice of Decision dated 24 April 2018, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 2 August 2018, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence and materials, the Board made the findings below.
(1) His evidence given to the Director was different from that he gave to the Board. [99]
(2) The applicant is therefore not a witness of truth. [100]
(3) The Board did not accept his evidence that his uncle and his son had assaulted or threatened him. [101]-[103]
(4) There will be no real risk if he returns to India. [106]
10. For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 16 October 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant said that his life would be in danger if he returned to India.
DISCUSSION
13. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he could not say that the Board was wrong.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”
16. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.
17. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 9th day of December 2025
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(M.O. WONG (Ms))
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 9/12/2025
Kalwinder
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11478/18/5/63/IN2256
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/1458/11 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] . Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
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