KIMPHA ANAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 680/2020

[2025] HKCFI 4482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 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, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only 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 Thai national.  By a Form 86 dated and filed on 17 April 2020 (“Form 86”), which was accompanied by an supporting affirmation also dated and filed on 17 April 2020 (“the Affirmation”), the Applicant sought leave to commence judicial review in relation to a decision of the Torture Claims Appeal Board(“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 13 October 2017[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

Background

3.  The following are apparent from the correspondence between the Director and the Applicant, the Applicant’s Notice of Appeal/Petition (“NOA”), and the TCAB Decision.

4.  The Applicant sought to make a non-refoulement claim via two undated written significations received by the Director of Immigration (“the Director”) on 6 and 8 July 2016. A blank NCF was then served on him on 10 August 2016. The Director required, as mentioned in letters to the Applicant of 31 August, and of 12 and 21 September 2016, that the Applicant return the completed NCF on or before 28 September 2016. Pursuant to a request from the Duty Lawyer Service (“DLS”) on behalf of the Applicant, the Director by a letter dated 28 September 2016 granted the Applicant an extension of time to submit the NCF until 12 October 2016.

5.  On 12 October 2016 the DLS informed the Director that they did not have instructions in respect of the Applicant’s claim. As the Director had not by then received a completed NCF, or a request for further extension of time to submit such, in a letter dated 14 October 2016 the Director:

a.  Notified the Applicant that his non-refoulement claim would be treated as having been withdrawn on 13 October 2016;

b.  Notified the Applicant that if he wished to apply to re-open his non-refoulement claim, the Applicant should provide sufficient evidence in writing to satisfy an immigration officer that the Applicant had not been able to return the completed NCF as required due to circumstances beyond his control (being effectively the criteria in s. 37ZG(3) Immigration Ordinance (CAP.115) (“the Ordinance”) as applicable at the time[2]); and

c.  Advised the Applicant to seek advice from the DLS or a legal representative if considered necessary.

6.  By a written request dated 24 November 2016, the Applicant asked to re-open his non-refoulement claim on the grounds that he had a perceived fear that his life would be in danger if he was to be returned to his home country.

7.  The Director by a letter dated 12 December 2016:

a.  Informed him that his non-refoulement claim may only be re-opened if the Applicant were to provide sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyondhis control, the Applicant had not been able to return the completed NCF within the time limit; and

b.  Informed him that if the Director did not receive further information and evidence to support the Applicant’s request to re-open the claim, the Applicant’s request would be assessed based on available information.

8.  The Applicant responded to the Director by a letter dated 18 December 2016. While the Director noted its contents, the Director decided on 23 December 2016 not to re-open the Applicant’s non-refoulement claim as he considered that the Applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyondhis control, the Applicant had not been able to return the completed NCF within the time limit (“Director’s Decision”). The Director’s Decision also notified him of the possibility of appealing/petitioning to the TCAB/NRCPO and enclosed a blank NOA.

9.  As the Applicant was dissatisfied with the Director’s Decision he sought to appeal/petition to the TCAB/NRCPO by way of the NOA which was dated 6 January 2017 (but apparently only received by the TCAB/NRCPO on 11 January 2017: see TCAB Decision Paragraph 3). The NOA contained no grounds of appeal. However, the Applicant filled out “Section 5: Application for Late Filing of Notice of Appeal/Petition” as follows:

“I am so sorry because my late answering to your lettar(sic) but the reason is because a(sic) that time I have a little anoid(sic) with my girl friend so I dit(sic) coming to sheis(sic) home so I do not receive your letter but after we solve the problem I see my letters but I thingkin(sic) is to late so I just writing agaeng(sic) so please helping me now because I cant(sic) go back to my country thank you so much”

10.  The Applicant apparently made further submissions to the TCAB/NRCPO on 5 occasions between 14 January and 6 March 2017 in which he apparently briefly referred to the basis of his claim, and asked for such to be re-opened (see TCAB Decision Paragraphs 1 and 5). Eventually, the TCAB Decision was handed down in which the decision-maker dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

11.  As the TCAB Decision was dated 13 October 2017, the 3-month deadline under RHC O. 53 r. 4(1) expired on 13 January 2018. The present leave application was hence filed more than 2 years and 3 months (or more than 27 months) out of time.

12.  However, and in spite of this lengthy delay the Applicant has neither sought an extension of time nor given any explanation for this extremely long delay. Nor do the Form 86 or Affirmation set out any grounds for judicial review. The latter merely expresses that he is “NOT” satisfied with the TCAB Decision.

Legal Principles

13.  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).

14.  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).

15.  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).

16.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[3] (iii) the merits of the substantive application[4] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Relevant parties and decisions in relation to which leave is sought

17.  Although the Applicant had identified the “Immigration Department” as the only putative Respondent and putative Interested party, I did not understand him to be seeking leave for judicial review of the Director’s Decision, particularly as the Form 86 referred only to the TCAB Decision as the judgment, order, decision or other proceeding in respect of which relief is sought. In any event any such application (if made) would stand only to be rejected given that that once the Applicant had pursued his appeal to the TCAB/NRCPO, the Director’s Decision was no longer susceptible to judicial review. Further, no exceptional circumstances have been suggested to me that would justify such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

18.  I have therefore amended the Form 86 of my own motion to reflect the identity of the putative respondent and of the interested party.

Discussion

19.  The application was filed more than 2 years and 3 months (or more than 38 months) out of time. I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

20.  Dealing, firstly, with the merits of his application, the Applicant has not (again despite the lengthy period that elapsed between the TCAB Decision and the making of the leave application) identified or set out any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

21.  Nevertheless, 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. From my examination and scrutiny, there is no reasonably arguable public law error that justifies vitiation of the conclusions in, and hence the grant of leave to apply for judicial review of, the TCAB Decision:

a.  On a reasonable and holistic reading, the TCAB/NRCPO considered that on the evidence the Applicant had failed to provide a sufficient reason for having not submitted an NCF in compliance with then-s. 37ZG(3) of the Ordinance, and had not established the relevantcircumstances within either limb of s. 37ZE(2)[5] of the Ordinance;

b.  The decision-maker’s conclusion as to s. 37ZG(3) of the Ordinance was determinative of the issue, and I see no reasonably arguable public basis (nor has one been identified by the Applicant) for interfering with that conclusion. In particular, while on the facts it may not have been necessary for the TCAB/NRCPO to consider and apply s. 37ZE(2) of the Ordinance, it appears to have done so holistically and out of an abundance of caution so as to have regard to the overall justice and circumstances of the case before it, and I do not on the papers before me see any reasonably arguable case that such consideration has prejudiced or tainted its conclusion in relation to s. 37ZG(3) of the Ordinance, let alone such as to require vitiation of the latter; and

c.  In any event, on the papers before me I conclude that it would be futile to remit the matter to the TCAB/NRCPO as there would be no change to the outcome, and hence leave should still be refused as there is no realistic prospect of relief being granted. This is so regardless of whether the TCAB/NRCPO applies the current version of s. 37ZG (as it should, given the approach in Cadnan Foose Maxamad [2022] HKCFI 429 at §§20-21; Ripon Mohammed [2022] HKCFI 592 at §34.a. to b.) or the version in force at the time of the TCAB Decision (13 October 2017).

22.  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.

23.  Secondly, there is not just an undue delay in this case, but importantly one that is extremely lengthy, as the leave application was filed more than 2 years and 3 months (or more than 38 months) out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation has been given for the undue delay. There is therefore absolutely no good or valid justification for such, nor to even begin to suggest that the Applicant has acted sensibly and reasonably (cf. AW, supra, at §27).

24.  Given such matters, I would refuse to extend time, and would dismiss the application for leave on the grounds of delay alone, even if (which I do not see) the Applicant’s case on the merits could be said to be reasonably arguable or even strong.

25.  Thirdly, further to the lengthy and unexplained undue delay, and given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereasallowing it to proceed would clearly be to the detriment of good administration and would needlessly prejudice the putative Respondent. This is particularly so when the Applicant has never submitted an NCF despite his having been given ample opportunity to do so, and when there is ample information in the public domain including from the Legislative Council[6] which establishes that there are still a large number of non-refoulement claims outstanding, even though it is nearly 10 years since the decision in AW, supra and over 4 years since the first instance decision in Hariatiningsih, supra. Indeed, I would have concluded as in Paragraph 19 above even if the Applicant had (which he does not) a reasonably arguable ground for judicial review, as it is clear that the substantial detriment to good administration in this case, and to the Respondent, vastly outweighs any prejudice caused to the Applicant.

26.  Fourthly, and finally,there is noquestion of general public importance raised by the application which is likely to be resolved by the courts in any event.

Conclusion

27.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders 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