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

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 27 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 16 October 2020 (the “Board’s Decision”).

2.  The Applicant named the Board and the Director of Immigration (the “Director”) as both the proposed respondents and proposed interested parties in the Form 86. As it is usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 23 December 2025 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In short, he claims that he would be killed or serious harmed if he were to return to India:-

(1)   He has a loan dispute with loansharks (the “Loansharks”) who were connected to the Bharatiya Janata Party (“BJP”).

(2)   The local police in India were pursuing the Applicant over a false case previously filed by the Applicant’s ex-wife against him.

(3)   He was humiliated and degraded emotionally by the local community because his wife has remarried.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 16 January 2021. However, the Form 86 was filed late for over 3 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  In the present case, the delay of over 3 months is significant.

7.  In the Form 86, the Applicant claimed that he only received a copy of the Board’s Decision by post on 15 February 2021 (i.e. about 4 months after the Board’s Decision was made). I am unable to accept this bare allegation at face value given the lack of detail in his explanation and the absence of any supporting evidence.

8.  In my view, the most crucial factor in deciding whether to exercise my discretion to extend time is the merits of the Leave Application. If it is bound to fail, no meaningful purpose can be served by granting any time extension even if I am prepared to assume in favour of the Applicant that he has an innocuous explanation for the delay. Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

9.  It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In the Form 86 and the accompanying supporting affirmation, the Applicant did not advance any reviewable grounds in support of the Leave Application.  He merely claimed that it was dangerous for him to return to India because of the COVID pandemic at the time. I cannot see how this allegation (even if true) could assist his non-refoulement claim. In any event, the COVID crisis is now over.

11.  In any event, I have reviewed the Board’s Decision, the papers and the evidence, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-

(1)   Further, I do not see any basis to interfere with the Board’s finding that there was no risk of threat:-

(a)   The Applicant had failed to attend the hearing before the Board so the Board had to proceed without any assistance or oral evidence from him and could only assess his claims on documents only (§§6-8).

(b)   As analysed by the Board (at §43(1)) (for which I see no reason to intervene), the Loansharks had ample opportunities to kill or seriously harm the Applicant but did not do so. This demonstrates a lack of intention to kill or seriously harm him. In my view, this is plainly correct, if the Loansharks were looking to recover money from the Applicant, they would stand to gain little by killing the Applicant.

(c)   The Board was also plainly entitled to find that the India police had no interest in pursuing the Applicant given the lack of any supporting evidence for this aspect of the Applicant’s claim (§43(2)).

(d)   There was also no evidence to show that the Loansharks had such influence that they were able to influence the BJP to pursue the Applicant (§43(3)).

(2)   Having regard to relevant Country of Origin information and the personal circumstances of the Applicant, the Board found that sufficient state protection and reasonable internal relocation alternatives are available to the Applicant as there is no credible evidence to support the Applicant’s bare assertion that the Loansharks would have the means to pursue him throughout his home country (§§57-68, 85-95). In my view, the Board is plainly entitled to make this determination.

12.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  Hence, I see no reason to grant a time extension.

Conclusion

13.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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