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

HCAL 512/2020

[2026] HKCFI 504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 512 OF 2020

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D E C I S I O N

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Introduction

1.  The Applicant is a national of India.  He arrived in Hong Kong illegally by boat from Chinese Mainland on 7 September 2015.  He was arrested on the same day.  On 10 September 2015, the Applicant lodged a written claim for non-refoulement.   The Applicant submitted a Non-refoulement Claim Form on 21 December 2017.

2.  On 9 January 2018, the Director of Immigration refused the Applicant’s non-refoulement claims.  The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) was dismissed on 9 March 2020 (the “Board’s Decision”).

3.  By Form 86 filed on 7 April 2020, the Applicant applied for leave to apply for judicial review against the Board’s Decision (the “Leave Application”).  The hearing of the Leave Application took place on 6 May 2025 but the Applicant did not attend the hearing.  The Applicant did not provide any grounds in support of the Leave Application in the Form 86.  In the supporting Affirmation, the Applicant simply said he was not satisfied with the Board’s Decision and that his life is not safe in his country.  The Applicant did not explain why the Board’s Decision was erroneous. 

4.  By the decision dated 30 May 2025 ([2025] HKCFI 2192) (the “Court’s Decision”), this Court dismissed the Leave Application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

5.  By the Summons filed on 18 November 2025, the Applicant applied for an extension of time to appeal against the Court’s Decision, as the 14‑day period for him to file the appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

6.  The Application was heard on 12 January 2026 and the Applicant attended in person.  At the said hearing, when being asked about the delay in filing the Application, the Applicant said he was detained at the relevant time.  He said he was previously detained at Pik Uk Prison, and is currently detained at Tai Tam Gap Correctional Institution.  The Applicant indicated that he had nothing to say in respect of the Application.

Discussion

7.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued. (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

8.  In the present case, there was delay of about 5 months.  In the supporting Affirmation, the Applicant explained that he was serving his sentence at Pik Uk Prison when he received the Court’s Decision.  He said he was under a lot of stress at the time and did not think about it.  He further stated that he was not educated and needed legal assistance, but no one helped him at the time.  I do not accept the Applicant’s purported explanation.  Being detained is not a valid reason for the delay in making the Application.  Further, despite the Applicant’s contention that he did not know how to make a proper application and that there was no one to help him, I note that the Applicant actually made an application for a writ of habeas corpus on 4 September 2025 (see [2025] HKCFI 5908).  The Applicant has failed to explain why the Application could not be made at least around the same time as that application. 

9.  Despite the lack of satisfactory explanation for the delay, I shall still proceed to consider the merit of the intended appeal before deciding on the Application.

10.  In the Summons, the Applicant did not provide any grounds in support of the intended appeal.  In the supporting Affirmation, the Applicant relied on a number of grounds which can generally be summarised as follows:-

(a)     The Court’s Decision was reached unfairly without allowing the Applicant an opportunity to clarify his case.

(b)     The adjudicator wrongly considered that the Applicant’s life was not at risk.  The adjudicator unreasonably drew the conclusion on the basis that the Applicant could not remember the details of the assaults and incidents.

(c)     The adjudicator failed to consider the mental suffering aspect of the Applicant.

(d)     The adjudicator was wrong to state that the Applicant did not face any risk upon his return to India in the context of India.

(e)     The Applicant claimed that “the point in his case” was ignored and the decision was not transparent. He further claimed that the situation in India is more difficult and different from what the decision makers might think.  The Applicant said it is hard for the Applicant to live and stand in front of his enemies, as his enemies are very powerful because of their religion (i.e. Hindu; in contrast, the Applicant said his religion (Sikh) is amongst the minority in India).

(f)     It was impossible for the Applicant to go back to India at this stage.

(g)     The Court’s Decision was reached unfairly and the Applicant is not satisfied with the decision.  He claimed that his life is in danger in India.

(h)     The Applicant said recently there is a lot of things happened in his family.  He said his family got attacked by his enemies.  He said all these are “new” incidents and were not included in his existing claims.  He said he can provide evidence (or further evidence) in support of both his existing claims and the “new” claims.

(i)     The Applicant said there are no human rights in India.  He said India is a corrupted country and there is no justice there. 

11.  I have considered the Court’s Decision together with the Board’s Decision in detail.  I am of the view that none of the grounds stated above is meritorious.  I shall briefly state my reasons below.

12.  In respect of the points made in §§10(a) & (g), contrary to the Applicant’s bare assertion, the Applicant was given full opportunity to present his case before the Court.  The Applicant could and should have stated his grounds in support of his Leave Application in Form 86 or in the supporting Affirmation but he failed to do so.  A hearing was held on 6 May 2025 to further allow the Applicant to present his case but he did not attend the hearing.  I note that the Notice of Hearing was issued to the address provided by the Applicant on Form 86.  The Applicant has not filed any Notice of Change of Address to date.  It is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). In the premises, I consider that the Applicant had been given fair opportunities to present his case but he simply failed to do so. 

13.  As regards the Applicant’s contention that the Court’s Decision was reached unfairly, this is no more than a bare assertion with no particulars and elaboration.  I have reviewed the Court’s Decision and I do not see any unfairness or errors therein.

14.  In respect of the points made in §§10(b) & (d), I have reviewed the Board’s Decision.  The Board was entitled to reject the Applicant’s claims based on the evidence (see in particular §§25-53 of the Board’s Decision).  The Board had also duly considered the situation in India (see for instance §§48(d) & 52 of the Board’s Decision).  There was no error committed by the Board in this regard.

15.  In respect of the point made in §10(c), the Applicant’s claim is in relation to a land dispute with his uncle and his uncle’s two sons.  There was no allegation of mental suffering by the Applicant.  From the Board’s Decision, it is clear that the Board was aware that ill-treatment included both physical and mental (§§15-17, 19 of the Board’s Decision), and so the Board would have taken into account any alleged mental suffering if the same was relied upon by the Applicant with supporting evidence.    

16.  In respect of the point made in §10(e), the Applicant has not specified the “point” the Board had allegedly ignored.  I also fail to see how the Board’s Decision was “not transparent”.  The Board had provided comprehensive reasons for rejecting the Applicant’s claims.  As regards the Applicant’s allegation that his enemies are powerful because they are Hindu whereas the Applicant is a Sikh, this is directly contrary to the information provided by the Applicant to the Immigration Department in which the Applicant stated that his religion is Hindu (see §1 of the Board’s Decision).  In any event, the alleged “power” or “influence” of the Applicant’s uncle had been duly considered by the Board (see §30 of the Board’s Decision).  There is nothing to indicate that the Board had failed to consider any evidence before it.

17.  The point made in §10(f) above is vague and general.  As I have indicated above, the Board had duly considered the Applicant’s claims based on the evidence adduced and there is nothing to indicate that the Board had committed any errors in the decision.

18.  In respect of the point made in §10(h) above, if there is indeed justification for any “new” claim as alleged, the proper course for the Applicant to take is to file a subsequent claim under section 37ZO of the Immigration Ordinance (Cap 115) based on any alleged change of circumstances, rather than applying for judicial review against the Board’s Decision.  The challenge to the Board’s Decision based on any “new” circumstances is plainly misconceived.  In fact, I note from the decision in [2025] HKCFI 5908 (§5.2 thereof) that the Applicant had indeed made a subsequent claim. 

19.  In so far as the Applicant claimed that he can produce further evidence to support his existing claims, the Applicant had ample opportunity to submit such evidence.  The Applicant has also failed to identify the further evidence he wished to submit.  The Board and the Court were entitled, and indeed correct, to reject the claims and the Leave Application based on the existing evidence.

20.  Lastly, in respect of the point made in §10(i), the Board had clearly considered the COI materials and accepted that there are corruption issues in India (§48(d) of the Board’s Decision). The Board was however entitled to come to the conclusions it did despite such issues in India.  I see no errors committed by the Board in this regard.      

21.  I have reviewed the Board’s Decision and the Court’s Decision carefully.  I am of the view that the Court came to the correct decision that there is no realistic prospect of success in the intended challenge of the Board’s Decision (§7 of the Court’s Decision).  I do not see any errors of law, procedural unfairness or irrationality in the Court’s Decision.  Accordingly, I fail to see any prospect of success in the intended appeal.

Conclusion

22.  As there is no satisfactory explanation for the delay, and more importantly no prospect of success in the intended appeal, I refuse to extend the time for the appeal.  The Application is hereby dismissed.