JOGINDER SINGH v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1408/2020

[2025] HKCFI 5682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1408 of 2020

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 filed on 7 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 7 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) made on 1 March 2018 (“the NRCPO Decision”)[1].  I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application on 6 August 2025.  He initially said he had nothing to add in relation to the matters set out in the papers, but upon being questioned on the issue of the delay, made some submissions in relation thereto. I set out such below.

Background

3.  This is set out in the NRCPO Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by supporters of the Congress Party, including one Mr Brar, and Mr Paramjit Singh and his people;

(2)  The Applicant had lodged a claim on the basis of Torture Risk[2] which was rejected by the Director of Immigration (“Director”) in a decision dated 23 July 2012 (“Director’s First Decision”), and against which no appeal was filed;

(3)  The Applicant then lodged a non-refoulement claim on 2 January 2014. This was assessed on the BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and was rejected by the Director in a decision dated 4 August 2017 (“Director’s Further Decision”);

(4)  The Applicant petitioned the NRCPO for relief in relation to the Director’s Further Decision, which held a hearing in relation to the Applicant’s non‑refoulement claims on 15 January 2018; and

(5)  The NRCPO issued the NRCPO Decision on 1 March 2018, in which it decided that the Applicant had failed to establish a claim to non-refoulement relief on any of the three relevant bases and confirmed the Director’s Further Decision.

Legal Principles

4.  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).

5.  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).

6.  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).

7.  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:

(1)  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[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  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;

(3)  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

(4)  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.

Discussion

8.  The application was filed more than 3 months after the NRCPO Decision, and over 25 months out of time.  I do not see any good reason 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 I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

9.  The Form 86 contains one ground for judicial review, namely “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non‑refoulement Claims and the decisions were not reasonable and fair (as required by the Wednesbury test).”  This has been copied word for word from other cases.

10.  However, once the Applicant had pursued his petition to the NRCPO the Director’s Further Decision was (absent exceptional circumstances, of which none have been suggested to 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).  Hence the portions that relate to the Director and/or the Director’s Further Decision (which is in any event not specified as a decision in respect of which relief is sought) are not reasonably arguable and must be dismissed. 

11.  Furthermore, the remaining portion of the ground is entirely inadequate as it merely consists of 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 NRCPO Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

12.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.  The NRCPO began by setting out the Applicant’s procedural history, the types of risk relevant to non-refoulement claims, and relevant principles relating to state protection, burden of proof, and the risk of harm (Paragraphs 1 to 20).  It then outlined the conduct and nature of the hearing, as well as the Applicant’s case in detail, as well as his immigration history (Paragraphs 21 to 28) before moving on to the principles relevant to its consideration of the evidence and the evidence submitted (Paragraphs 29 to 32).

14.  The decision-maker then assessed the Applicant’s credibility with regard to salient evidence, COI, and principles, and found that on the whole the Applicant was not telling the truth and that his case was both vague and unbelievable.  It was only accepted that the Applicant belonged to the ADP party which had conflicts and disputes with the Congress Party, and that he had been harassed by local members of the latter in his village.  However, the NRCPO did not accept the Applicant’s claim that he had suffered from any serious injury, had been subjected to any genuine threats, and “All the other matters including detention by police, kidnap and attacks by the people form the Congress Party and [that he was] beaten up by police.” It hence clearly did not accept the Applicant’s core factual allegations and evidence advanced in support of his non-refoulement claim (Paragraphs 33 to 42).

15.  The NRCPO went on to consider that even if the Applicant’s story were true and he were credible, the past treatment had not attained the requisite minimum level of severity and there was a low risk, and no substantial grounds for believing, that he would be harmed or killed upon being refouled. His fear of persecution was also not well-founded.  It hence did not accept that the Applicant warranted non-refoulement protection on the basis of Persecution Risk, BOR 3 Risk, or BOR 2 Risk (43 to 64).  It also found that on the facts internal relocation did not arise, but in any event that it was available to the Applicant (Paragraphs 65 to 67).  The Applicant’s non-refoulement claim was hence rejected and the Director’s Further Decision was confirmed (Paragraph 68).

16.  I do not, from my examination and scrutiny, 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 is sufficient to vitiate the NRCPO Decision and justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and the risk of harm, which are all matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

17.  The NRCPO Decision does contain some matters relating to the question and existence of Torture Risk, which was not an issue before the NRCPO and had been already determined by way of the Torture Risk Decision.  However, such observations were clearly made obiter (see Paragraph 2(c) and 54), and I see no reasonable argument that such references tainted the NRCPO’s assessment of the evidence, credibility, and the other relevant types of risk (including in particular BOR 3 Risk which was a live matter for the NRCPO), or that the NRCPO had failed to take relevant matters into account.

18.  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.

19.  Secondly, there is undue delay in this case as the leave application was filed over 25 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 was given in the Affirmation for the undue delay.  This is notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above, and the fact that both documents have clearly had the benefit of input from someone with legal training and who must be taken to have known of the duty of full and frank disclosure, given that they are neatly typed and formatted, name the correct putative respondent and interested party, and seek specific remedies including certiorari, remittal, and costs.

20.  At the hearing the Applicant claimed that the delay was due to his having been arrested in 2017 and served a prison sentence in 2017 or 2018 (which date he said he could not remember), and claimed that he had been released in around September 2020.  However, he acknowledged that he had been able to file the leave application in July 2020.

21.  I do not accept that the Applicant has established an acceptable or credibly valid reason for this substantial delay:

(1)  On 29 December 2016 the Applicant was sentenced to 15 months’ imprisonment (see Paragraph 28 of the NRCPO Decision).  During his imprisonment he was able to file his Notice of Appeal/Petition against the Director’s Further Decision in which he gave his address in the Notice of Appeal/Petition (dated 14 August 2017) as Pik Uk Prison;

(2)  I do not see that the evidence before me substantiates the Applicant’s claim that he was still serving his sentence up until September 2020.  The Applicant attended the oral hearing before the NRCPO at Immigration Tower on 15 January 2018 and in any event, in his Form 86 and Affirmation which were both filed on 7 July 2020 (with the latter having been affirmed in the High Court building) he provided a street address in Ma Tau Kok;

(3)  Even if the Applicant had been imprisoned or detained for some period(s) from 2018 to 7 July 2020, I do not see or accept that such could constitute an acceptable explanation, or any valid justification, for such a lengthy delay, not least when the Applicant would have had access to welfare officers while in prison, and had managed to file the Notice of Appeal/Petition with the NRCPO whilst imprisoned in August 2017; and

(4)  The Applicant did not claim before me that he had not received or learnt about the NRCPO Decision at or shortly after its date (being 1 March 2018).  However, and in any event, it was his obligation to provide an effective address for service in relation to correspondence or notices of the TCAB/NRCPO, and as far as the latter was concerned, the address it was given was the Applicant’s designated means of contact.  If there is any delay occasioned by any subsequent ineffectiveness of that address, such falls on his shoulders (s. 37ZA Immigration Ordinance (CAP. 115); Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).

22.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

23.  In the circumstances, I have ordered that the application for leave to apply for judicial review 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