MISTRY BISWAS TAPATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 978/2020

[2025] HKCFI 3223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 978 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 is amended on the court’s own motion.

2.   There shall be no extension of time for filing of the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 August 2018 (“Board’s Decision”) dismissing the appeal of the applicant, her husband (“H”) and two daughters (respectively “Daughter 1” and “Daughter 2”) (Collectively known as the “Family”) against a decision of the Director of Immigration (“Director”) dated 27 October 2017 (“Director’s Decision”) rejecting the Family’s  non-refoulement claim on all applicable grounds except torture risk[1]. Torture risk was covered by a prior decision of the Director dated 11 March 2013.  The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000978_2020_files/the_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000978_2020_files/Earlier_Board's_Decision.pdf

2.  The present case only concerns with the applicant but not the other 3 members of the Family.  In her Form 86, the applicant named the Director as well as the Board as the proposed respondents and interested parties.  As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

Previous applications for leave to apply for judicial review

3.  For clarity, I should briefly state the procedural history of these proceedings.  After the Board’s Decision on 19 September 2018, the entire Family filed applications for leave to apply for judicial review of the Board’s Decision respectively under the case numbers of HCAL 1974/2018; HCAL 1975/2018; HCAL 1976/2018 and HCAL1977/2018. 

4.  The applications by H and the applicant respectively under HCAL1974/2018 and HCAL 1975/2018 were ordered to be withdrawn by the orders of DHCJ Bruno Chan respectively dated 25 October and 15 April 2019.  The orders for withdrawal were based on the their applications for withdrawal by affirmations stating respectively by H that his problem in India had been resolved and that he would not be subjected to any torture, and by the applicant that she wanted to go back home. 

5.  In respect of the applications under HCAL 1976/2018 and HCAL 1977/2018, the court held an oral hearing on 6 March 2024.  At the hearing, Daughter 1 was no longer a minor and represented herself, whilst Daughter 2 was represented by H.  By his decision dated 23 April 2024, DHCJ Bruno Chan ordered that HCAL 1976/2018 to be consolidated with HCAL 1977/2018, and that the applications by Daughter 1 and Daughter 2 be dismissed. 

6.  In respect of the present case, the basis of the applicant’s claim was that she would be harmed or killed by H’s creditors who were members of the Communist Party in India. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

7.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 June 2025, in which she applicant attended in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

8.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.    

10.  In her supporting affirmation, the applicant stated that there were many problems in her country due to the virus and that her children would be disadvantaged in the event of refoulement, as they received their education in Hong Kong.

11.  At the hearing, this court asked her whether she was making the present application just for herself or on behalf of the Daughter 2. She confirmed that the present application was only for herself. She informed the court that the applications for the rest of the Family had been rejected and they would appeal.  She further updated this court that her third child was born in Hong Kong on 20 July 2023, and there will be a separate non-refoulement claim to be lodged on the child’s behalf.  The applicant stated that she had nothing to say or to add in relation to the grounds of her intended challenge. 

12.  As the Courts have repeatedly stated, 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.[4] In the Board’s Decision, the Board considered the claims of the entire Family, which basis of the claims was almost entirely based on the fear of the creditors originating from the unpaid loans made by H.  The Board found that H’s assertion about the loan was incredible due to many inconsistences in the material aspects of H’s evidence. The Board also separately asked questions from the applicant about the assertion that she had been raped several times.  The Board rejected H’s evidence about the loan, the assertion that the applicant had been raped.  Thus, the Board found that there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

13.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  The evaluation of the credibility of the applicant’s claim is within the exclusive purview of the Board.  In the present case, the Board, when assessing the credibility of the applicant’s claim of having been raped on several occasions, it had fairly reminded itself of the effect of trauma on a rape victim including the reluctance to recall the event.  I am satisfied that the Board was entitled to reject the applicant’s claims of fear.  The applicant’s assertions in her supporting affirmation are mostly in relation to her children.  Apart from these irrelevant assertions, the applicant had advanced no grounds in support of the Leave Application.  The applicant had not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision in either his papers or at the hearing.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to grant extension of time

14.  More importantly, there is a substantial delay in the Leave Application.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  Strictly speaking, the Leave Application is late for about 1 and ½ years.   

15.  In deciding whether to extend time to appeal, I should take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted. 

16.  In considering the length of delay, I need to bear in mind that the applicant’s previous application under HCAL 1975/2018, which was made within time.  Since HCAL 1975/2018 was disposed of without the considering of the merits, I’d inclined to accept that the applicant will not be precluded to file the Leave Application afresh. In the circumstances, the court should consider the circumstances leading to the applicant’s filing of the Leave Application as well as the merits.

17.  Upon the court’s inquiry about the circumstances leading to the filing of the Leave Application, and generally the delay, the applicant gave very confusing responses.  She stated that when she received the Board’s Decision, she did not know what to do.  When she went to the Immigration detention center, the immigration staff therefore advised her to file the Leave Application if she wanted to continue to stay in Hong Kong. 

18.  In my view, the applicant had not provided any reasonable explanation for the filing of the Leave Application afresh after one year the court had ordered the withdrawal of her previous application under HCAL 1975/2018.  Having taken into account of the lack of realistic prospects of success in her intended challenged, I will in any event refuse to extend time for the filing of the Leave Application.

Orders

19.  The Form 86 is amended on the court’s own motion.

20.  There shall be no extension of time for filing of the application for leave to apply for judicial review out of time.

21.  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