BANSAL MANOJ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 601/2020

[2025] HKCFI 3665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 601 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 from the Applicant in open court;

1.  The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the 2^nd Putative Respondent in place of “The Adjudicator of the Non-Refoulement Claims Petition office appointed to determine the Applicant’s Petition”, and naming the Director of Immigration as the Putative Interested Party; and

2.  The 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 dated and filed on 14 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding:

a.  A decision of the Director of Immigration (“Director”) dated 27 February 2019 (“Director’s Decision”); and

b.  A decision which states that it is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 26 March 2020[1] (“the TCAB Decision”).

2.  The TCAB Decision, but not the Director’s Decision, was exhibited to the Appliacnt’s supporting affirmation, also dated and filed on 14 April 2020 (“the Affirmation”). I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  At the oral hearing of the application, the Applicant confirmed that he sought leave to apply for judicial review of both the TCAB Decision and the Director’s Decision.

4.  I have amended the Form 86 of my own motion to reflect that the TCAB Decision states that it is a decision of the TCAB/NRCPO, and the identity of the Director as a putative respondent.

Background

5.  In 2008 the Applicant lodged a claim for non-refoulement relief on the basis of Torture Risk[2]. The basis of his claims was that he would be harmed or killed by the father and brother of Nishanka, his girlfriend in India, unless he stayed away from her. The claim was assessed and dismissed by the Director in a decision dated 25 October 2012. An adjudicator dismissed his petition from such in a decision dated 26 November 2012[3]. It is not apparent that the Applicant sought any further relief in relation to that decision.

6.  In October 2018 the Applicant was given a briefing session by staff of the Director regarding the submission of a Supplementary Claim Form (“SCF”), at which he was served with a Notice to Persons Making a Non-Refoulement Claim and an SCF. However, as no completed SCF together with all available supporting documents were received by the Director before the specified deadline of 12 December 2018, or indeed up to 27 December 2018, in a letter of the latter date the Director decided and notified the Applicant that his non-refoulement claim would be treated as being withdrawn.

7.  In a letter dated 7 January 2019, the Applicant claimed he could not submit the SCF on time due to health issues and wanted to reopen his case. The Director asked him to provide evidence and information in writing in support of the said reason by 29 January 2019, failing which his request would be assessed on the available information. However, no further information was submitted up to 27 February 2019. In the Director’s Decision of the latter date, the Director hence decided (based on the information and evidence available) not to re‑open the Applicant’s non-refoulement claim, as the Director was not satisfied that due to circumstances beyond the Applicant’s control the Applicant had not been able to return a completed SCF.

8.  As set out in the TCAB Decision, on 29 July 2019 the Applicant filed an appeal/petition against the Director’s Decision. The TCAB Decision was then issued on 26 March 2020 in which the TCAB/NRCPO held that the appeal/petition had been filed late and refused the application for late filing.

9.  The contents of the Form 86 appear to have had the input of someone with legal training as it is typewritten, sets out certain remedies sought including certiorari and remission, identifies the Director’s Decision and the TCAB Decision as the decisions in respect of which relief is sought, names the Director and the adjudicator of the NRCPO as the putative respondents, and contains several grounds (set out below) on which relief is sought (“Grounds”).

Legal Principles

10.  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).

11.  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).

12.  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).

Discussion

13.  The Grounds are as follows:

a.  “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claims. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.” (Ground 1)

b.  “From the Director's Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 2)

c.  “The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” (Ground 3)

d.  “I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has compiled reports on the matter which stated testament to my assertions.” (Ground 4)

e.  “Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.” (Ground 5)

f.  “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response (sic) to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.” (Ground 6)

g.  “The Adjudicator made a ruling to dismiss my appeal/petition in the [TCAB/NRCPO] based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.” (Ground 7)

14.  The application for leave for judicial review of the Director’s Decision stands only to be rejected, and I do so, given that once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been put before me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

15.  The Grounds or portions thereof that relate to the Director and/or the Director’s Decision are hence not reasonably arguable and must be dismissed. Consequently Grounds 2, 4, and 5 must be dismissed, and when considering the other Grounds I shall ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed.

16.  The remaining portions of the Grounds are entirely inadequate, being merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.

17.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have 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.

18.  The TCAB Decision began by setting out the events that took place starting from the making of the Director’s Decision. It correctly identified the relevant timeframes in question including the delay of 4 months and 14 days, the obligation of the Applicant, and the relevant issue having regard to the constraints set out in ss. 37ZS and 37ZT Immigration Ordinance (CAP. 115) (“the Ordinance”) (see Sudimah [HKCA] 1030 at §14; Chaudhary Mohammad Mobeen @ Chaudhry Muhammad Mobeen [2018] HKCFI 995 (CFI) at §§27-28, 33 and [2018] HKCA 663 at §§12, 19; Ram Chander v Director of Immigration [2018] HKCA 585).

19.  The decision-maker noted that no documentary evidence had been submitted by the Applicant and set out the applicable three-stage test from Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (Khan Kamal Ahmed [2019] HKCA 377; Qasim Ali [2019] HKCA 430; Atienza Chona Marasigan [2020] HKCA 23 at §§24-25). He then set out his observations and conclusions in relation to the statement of reasons for late filing, applied the three-stage test in Begum, and concluded (with reference to relevant underlying facts and findings) that the delay of 4 months and 14 days was a serious and significant failure to comply with the rules, there was no good reason for the breach, that on all the relevant circumstances of the case (including the merits of the appeal) it was fair and just to refuse the application, and that there were no other matters known that amounted to special circumstances which might make it unjust not to allow the late filing (see s. 37ZT(3)). Accordingly, the application was refused.

20.  From my examination and scrutiny I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that vitiates the TCAB Decision. In particular:

a.  The remnants of Grounds 1, 3, and 6 relate to the merits of the Applicant’s underlying non-refoulement claim. However they are misplaced and not to the point. The notice of appeal/petition concerned the Director’s decision under s. 37ZG(3) of the Ordinance not to re-open a withdrawn claim, and did not concern a decision of the Director rejecting the Applicant’s non-refoulement claim on the merits. There was no basis in the present case to require that the decision-maker evaluate the merits of the non-refoulement claim or any issues relating to it, and indeed he did not do so (Hussain Rizwan [2021] HKCFI 922 at §§4-8, [2024] HKCA 344 at §§14-15, 23; HKCA ; Musafaqoh [2018] HKCFI 1562 at §§22, 27, [2018] HKCA 962 at §§9-12; Sudimah [2019] HKCFI 603 at §25-27, [2019] HKCA 1030 at §§8-9, 15-16, 19). Grounds 1, 3, and 6 are hence unarguable and do not raise any reasonable prospect of success; and

b.  The Applicant has failed to identify the specific facts and matters relevant to the alleged irrationality as alleged in Ground 7. In any event I see no such irrationality. Nor do I see that there was any unreasonable/unfair procedure and/or any error of law, let alone one resulting in an irrational/unfair outcome. Not only does s. 37T(2) of the Ordinance provide that the issue was to be decided as a preliminary issue without a hearing, but from the TCAB Decision it is clear that the TCAB/NRCPO fairly considered and evaluated the relevant evidence and matters before it, including the merits of the appeal, and gave relevant reasons for its findings which logically supported and led to the dismissal of the Applicant’s application. There is no reasonably arguable public law basis for faulting the process or the conclusions.

21.  At the oral hearing the Applicant alleged, by way of submission and without reference to any supporting documentation, that (i) he had no-one to go back to as his mother had passed away in 2005 and his father and brother had passed away in the last 1 ½ years; and (ii) that his father had passed away due to the stress of the problems the Applicant was facing in India.

22.  These allegations are irrelevant given the nature of the issues before the TCAB/NRCPO as analysed at Paragraph 20.a above, and the nature of judicial review of such. They are also inadmissible as new evidence as the Applicant has not established (again given the nature of the issues before the TCAB/NRCPO) that any of them meet the second condition in Ladd v Marshall [1954] 1 WLR 1489. I also do not accept that the fact of his mother’s demise meets the first condition in Ladd v Marshall. Nor do I accept that the bare and unsupported allegation as to the underlying reason for his father’s demise meets the third condition in Ladd v Marshall. They are hence to be ignored, and I have done so, in the determination of the present application.

23.  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.

Conclusion

24.  In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out 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