MANINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 92/2020

[2025] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 92 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.   Leave granted to the applicant to file his application for leave to apply for judicial review out of time on 9 January 2020.

2.   The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 8 August 2017 be dismissed.

3.   Leave granted to the applicant to apply for judicial review in respect of the decision of the Adjudicator of the Non-refoulement Claims Petition Office dated 19 March 2018.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions:-

(1) the decision of the Director of Immigration (“the Director”) dated 8 August 2017 (“the Director’s Decision”); and

(2) the decision of the Adjudicator (“the Adjudicator”) of the Non-refoulement Claims Petition Office (“the Petition Office”) dated 19 March 2018 (“the Adjudicator’s Decision”).

2.  At the oral hearing of the Leave Application on 18 March 2025, the applicant could not tell this court in respect of which decision he actually wanted to apply for the intended judicial review.  All he could remember was that he had withdrawn his appeal and he wanted to have the previous appeal reinstated.  However, he also indicated that both the Director’s Decision and the Adjudicator’s Decision should be judicially reviewed.

3.  Thus, this court will treat the Leave Application as being made in respect of the said two decisions.

Events leading to the Leave Application

4.  The applicant first made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by way of written representation of 17 April 2013 (“the Torture Claim”), which was received by the Immigration Department on 22 April 2013 but the process was not completed.

5.  Upon the commencement of the Unified Screening Mechanism (“the USM”) on 3 March 2014, the Torture Claim was taken to be a non-refoulement claim and assessed under the USM.

6.  The applicant claimed for non-refoulement protection based on his fear that, if refouled to India, a person named Prabhdayal Singh and his two sons would kill him because they coveted his father’s land to which the applicant was the sole heir.

7.  The Director assessed the applicant’s claim for non-refoulement protection on all the applicable grounds, including Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], and considered the applicant’s non-refoulement claim not substantiated. 

8.  Hence, the Director rejected the applicant’s non-refoulement claim by way of a Notice of Decision dated 23 February 2015.  However, the applicant was not then assessed on his BOR 2 Risk[4].

9.  On 11 March 2015, the applicant made an appeal/petition (“the First Appeal”) to the Torture Claims Appeal Board (“the Board”) against the Director’s decision dated 23 February 2015.

10.  On 9 May 2017, the Board received an undated letter from the applicant requesting for the withdrawal of the First Appeal (“the First Withdrawal Letter”).  As stated in the First Withdrawal Letter, the reason given by the applicant for the withdrawal was “Due to urgent family matters in India”.

11.  In reply to the First Withdrawal Letter, a Johnny Wong on behalf of the Board/the Petition Office sent a letter dated 15 May 2017 to the applicant to inform him that the Board/the Petition Office had given directions that the First Appeal was dismissed and the Director’s decision of 23 February 2015 was confirmed.

12.  The applicant did not challenge the directions of the Board/the Petition Office contained in the said letter of 15 May 2017.

13.  As the applicant’s BOR 2 Risk was not assessed, the Director sent a letter dated 10 July 2017 to the applicant inviting him to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all the applicable grounds for non-refoulement protection including BOR 2 Risk.

14.  The applicant did not reply to the Director.  Hence, the Director took it that the applicant had no additional information to provide and proceeded to review the applicant’s claim including BOR 2 Risk.

15.  By a Notice of Further Decision dated 8 August 2017 (ie the Director’s Decision), the Director considered that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance being violated (including BOR 2 Risk) upon his return to India.

16.  By way of a Notice of Appeal/Petition dated 21 August 2017, the applicant lodged an appeal/petition (“the Second Appeal”) against the Director’s Decision.

17.  However, by way of a letter dated 14 March 2018 (“the Second Withdrawal Letter”), the applicant applied to withdraw the Second Appeal because it was safe for him to return to India.  It was also stated in the Second Withdrawal Letter that the applicant’s application for withdrawal was freely made and he understood the consequence of the proposed withdrawal, ie his appeal/petition could not be reopened after withdrawal.

18.  In reply to the Second Withdrawal Letter, a Janice Lam on behalf of the Petition Office sent a letter dated 19 March 2018 to the applicant informing him that the Petition Office had given directions that the applicant’s petition was withdrawn and the immigration officer’s further decision of 8 August 2017 (ie the Director’s Decision) was confirmed. 

19.  The relevant paragraphs of the letter dated 19 March 2018 are reproduced as follows:-

“The Non-refoulement Claims Petition Office (“the Petition Office”) has considered your application to withdraw your petition having regard to all the available information placed before it.  After consideration, the Petition Office is satisfied that your application to withdraw the petition was freely sought, and that you understood the consequences of the withdrawal.  The Petition Office is also satisfied that there is good reason for your proposed withdrawal of the petition, namely, that you consider it safe for you to return to India.  Under the circumstances, the Petition Office has given direction that your petition is withdrawn.   The Petition Office has also directed that the immigration officer’s further decision of 8 August 2017 is confirmed.

Please note that your petition has now been disposed of and finally determined by the Petition Office.  No further action will be taken by the Petition Office in respect of your petition.”

20.  This letter with the directions quoted above was the decision of the Adjudicator referred to by the applicant in Form 86 (ie the Adjudicator’s Decision).

The Director’s Decision

21.  As aforesaid, the applicant wanted both the Director’s Decision and the Adjudicator’s Decision to be judicially reviewed.  However, as the applicant had already invoked the appeal mechanism and lodged the Second Appeal (though withdrawn subsequently), the Director’s Decision is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

22.  Thus, the Leave Application in respect of the Director’s Decision must be dismissed.  This court will consider the Leave Application only in respect of the Adjudicator’s Decision.

Out of time

23.  Form 86 was filed on 9 January 2020, which is more than 21 months after the Adjudicator’s Decision (made on 19 March 2018). 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 Adjudicator’s Decision was made.  The applicant was hence late for more than 18 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

24.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

25.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  A delay of more than 18 months is very substantial.  However, as discussed below, this court is of the view that the applicant does have a reasonably arguable case against the Adjudicator’s Decision, and in the interest of justice, this court is prepared to grant leave to the applicant to have the Adjudicator’s Decision judicially reviewed.

26.  Thus, this court will grant an extension of time for the applicant to file Form 86 out of time on 9 January 2020.

Grounds for judicial review

27.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

28.  The applicant did not advance any ground for his intended judicial review in Form 86.  In his supporting affirmation dated 9 January 2020, the applicant gave the reasons for his withdrawal and reinstatement of the Second Appeal as follows:-

“I withdrew my case from TCAB in 2018 as the things were getting better in the home country. Unfortunately, the enemies have murdered my cousin brutally and the police is protecting the killers. I am afraid that the danger to my life has amplified.”

29.  The reasons given by the applicant as aforesaid cannot amount to any ground for the intended judicial review against the Adjudicator’s Decision.  However, the applicant attached a document to his supporting affirmation and it contained four grounds for his intended judicial review. 

30.  Some of the allegations contained in the grounds were directed at the Director.  As aforesaid, the Director’s Decision cannot be judicially reviewed anymore.  Hence, they are irrelevant to the Leave Application.

31.  As to the allegations contained in the grounds that were directed at the Adjudicator, they are also irrelevant as the Adjudicator did not consider the merits of the applicant’s case at all.  The Adjudicator’s Decision was simply allowing the applicant to withdraw the Second Appeal.

32.  Thus, it is not necessary for this court to consider the grounds advanced by the applicant any further.

Oral hearing

33.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 March 2025.

34.  However, the applicant did not advance any further ground for the Leave Application at the hearing.

Discussion

35.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

36.  Thus, despite the lack of any relevant ground being advanced by the applicant for the intended judicial review, this court will still examine and scrutinize the Adjudicator’s Decision for any error of law, procedural unfairness and irregularities.

37.  The peculiar situation in this case is that the Adjudicator’s Decision was contained in a letter signed by a Janice Lam who stated that she was “for the Non-refoulement Claims Petition Office”.  As she did not identify herself as an adjudicator, one cannot assume that she was one.  In all likelihood, she should be just a staff of the Petition Office when she signed the letter on behalf of the Petition Office.

38.  One cannot assume that she was acting on behalf of an adjudicator either, as there was no mentioning in the letter that she was acting for an adjudicator of the Board.  In fact, in the body of the letter, she stated very clearly that “the Petition Office” had considered the applicant’s application to withdraw, “the Petition Office” was satisfied that the applicant’s application to withdraw was freely made and the applicant understood the consequence of the withdrawal, “the Petition Office” was satisfied that the applicant had good reason for his proposed withdrawal, “the Petition Office” had given direction that the applicant’s petition was withdrawn and “the Petition Office” had also directed that the Director’s Decision was confirmed.

39.  It is clear or at least apparent that only “the Petition Office”, not an adjudicator, had considered the Second Withdrawal Letter and given the directions that the Second Appeal was withdrawn and the Director’s Decision was confirmed.

40.  According to paragraph 2.1(t) of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“the Petition Scheme”), the Petition Office means an office established for providing administrative and secretariat support to the adjudicators under the Petition Scheme and is operated by the same team of staff members of the Board’s secretariat.

41.  It is clear that the Petition Office is not the same as an adjudicator of the Board.  It is just an office providing administrative and secretariat support to the Board’s adjudicators.  The Petition Office does not have any power to consider the applicant’s application for withdrawal, nor to give any directions to deal with such an application.

42.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board, ie the adjudicators, have the powers to hear and determine the applicant’s withdrawal application contained in the Second Withdrawal Letter.

43.  It is therefore ultra vires for the Petition Office to deal with the applicant’s application for withdrawal and to give directions in respect of the same.

44.  As there was no evidence to suggest that any adjudicator or member of the Board was involved in the Adjudicator’s Decision, it is liable to be set aside.

45.  Even if there was indeed an adjudicator or member of the Board involved in the Adjudicator’s Decision, it is still irregular for Janice Lam to state that the consideration and directions were made by the Petition Office instead of an adjudicator or member of the Board.  It is procedurally unfair to the applicant not to let him know that there was actually an adjudicator or member of the Board who was dealing with his application for withdrawal.  Just like what happened in the Leave Application herein, the applicant could not even name the adjudicator as the putative respondent.  As aforesaid, the power is given to the adjudicators or members of the Board to deal with such petitions, and hence they are liable personally for their decisions.  If there are any challenges to their decisions by way of judicial review, they should be named as the putative respondents.

46.  Having rigorously examined the Adjudicator’s Decision and the evidence with anxious scrutiny, this court is satisfied that there could be an error of law in respect of the capacity and power of the Petition Office and/or procedural unfairness to the applicant in the Adjudicator’s Decision.

47.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

48.  As it is this court’s view that there could be an error of law and/or procedural unfairness in the Adjudicator’s Decision, the intended judicial review is reasonably arguable.  Leave should therefore be granted to the applicant to apply for judicial review in respect of the Adjudicator’s Decision.

Conclusion

49.  For reasons aforesaid, the time for making the Leave Application is extended, and leave is granted to the applicant to apply for judicial review in respect of the Adjudicator’s Decision, but not the Director’s Decision.

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