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

HCAL 84/2023

[2026] HKCFI 2785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 84 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The application for adjournment by way of letter dated 20 April 2026 be dismissed.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 January 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against an alleged decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 October 2021. 

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 11 May 2026 and the Applicant attended in person.

Discussion

3.  There was no decision issued by the Board on 22 October 2021 as stated on the Form.  In fact, after the Director of Immigration rejected the Applicant’s claims on 22 October 2021 (the “Director’s Decision”), the Applicant appealed against the Director’s Decision on 4 November 2021 (the “Appeal”). By the letter dated 6 December 2021, the Applicant indicated unequivocally that he wanted to withdraw all his claims, including the Appeal (the “Withdrawal Application”).  He further stated that he would like to go back to India as it was safe for him to go back and he had money to buy air ticket. 

4.  By the letter dated 24 December 2021 issued by the Board to the Applicant, the Board acknowledged receipt of the Withdrawal Application.  The Board stated that it had considered the application having regard to all the available information placed before it.  The Board was satisfied that the Withdrawal Application was freely sought, and that the Applicant understood the consequences of the withdrawal.  The Board was further satisfied that there was good reason for the withdrawal, namely that the Applicant considered it safe to return to India.  Under such circumstances, the Board allowed the Withdrawal Application, and stated that the Appeal had been disposed of and finally determined by the Board.  No further action would be taken by the Board in respect of the Appeal accordingly.  

5.  At the hearing on 11 May 2026, I explained the above to the Applicant. The Applicant confirmed the accuracy of the above.  In particular, he understood he had withdrawn the Appeal and the Board had allowed such withdrawal.  The Applicant however said the situation in India had changed subsequently and he did not want to go back.  He said a case officer told him that if he wanted to stay in Hong Kong, he had to apply for judicial review. He therefore made the Leave Application. 

6.  In the premises, it is clear that there was no decision issued by the Board on 22 October 2021 susceptible to be reviewed as alleged on the Form.  The Leave Application shall be dismissed accordingly.

7.  In so far as the Applicant is applying for leave to commence judicial review in respect of the Director’s Decision, the Director’s Decision is not a decision that is susceptible to judicial review once an appeal to the Board had been pursued.  In Re Raschpal Singh [2020] HKCA 978, Lam VP (as he then was) stated the following (at §§40-41):

“40. Before discussing the CFI’s 2019 Decision, it would be helpful to remind ourselves of Re: Moshsin Ali [2018] HKCA 549, where this court (Lam VP and McWalters JA) undertook an extensive review of the administrative structure for the processing of torture claims. It examined the two tier process (first the Immigration Department, followed by review by the TCAB) for the processing of such claims. In particular, it noted important features of the TCAB’s review function. It concluded that as a result, the TCAB Decision supersedes the director’s decision and represents the final decision on the claim at the end of its processing. Importantly, it held that consequently, “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant”. (Emphasis added).

41. In the present case, the applicant pursued, and then withdrew, his appeal to the TCAB.  However, in my view, that does not mean that he could apply to the court for leave to judicially review the Director’s decision.  Quite apart from the effect of “final determination” under s.37V(2), it is a well-established principle of judicial review law that judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist.  The procedure of an appeal to the TCAB (with its wide review functions as set out in Moshsin Ali) was a suitable alternative safeguard, of which the applicant could (and did) avail himself.  The applicant has not contended that the TCAB appeal procedure was not a suitable alternative safeguard.  Indeed, he had originally pursued an appeal before withdrawing it and then starting judicial review proceedings.  The judge rightly held in the CFI’s 2019 Decision that “… the proper occasion for an applicant to present and articulate his claim is in the screening process before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board …” [para.18].  In my view, irrespective of the delay, the judge was entitled to refuse to give leave to commence judicial review by reason of the suitable alternative safeguard ground alone, and he need not have gone into the merits of the Director’s Decision.”  

8.  In the present case, the Applicant did appeal against the Director’s Decision to the Board.  However, he subsequently decided to withdraw the Appeal. Such withdrawal was granted by the Board.  This was precisely the situation discussed in Re Raschpal Singh.  It is not open for the Applicant to seek judicial review in respect of the Director’s Decision. 

9.  For the sake of completeness, it should be noted that the Leave Application was only filed on 19 January 2023, more than a year after the Director’s Decision and the grant of the Withdrawal Application by the Board. There is no explanation for the substantial delay.  From what the Applicant said at the hearing on 11 May 2026, it is plain that the Applicant simply made the Leave Application to delay his return to India, without bothering on the merits of the application.  This is a clear case of abuse of procedures. 

10.  The Applicant also tried to adjourn the hearing on 11 May 2026 by way of the letter dated 20 April 2026.  In the letter, the Applicant justified the application for adjournment by saying that he was upset by the recent death of his father. He asked for the hearing to be adjourned for 3 to 4 months so that his family could send him further evidence about his case.  The Applicant has however failed to identify precisely what evidence he wanted to submit and the relevance thereto.  In any event, in light of the decision above, the Leave Application is bound to fail.  I accordingly refused to adjourn the case.

11.  The Applicant has provided some grounds in support of his contention as to why the Director’s Decision was wrong in the supporting Affirmation. However, given my decision above, it is not necessary to consider such grounds.  I note that those grounds are in any event bare assertions without particulars or substance.   

Conclusion

12.  In the premises, I make an order that the application for adjournment and the Leave Application be dismissed.

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