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

HCAL 184/2020

[2025] HKCFI 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 184 OF 2020

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

Following:

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

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   No extension of time be granted for application for leave to apply for judicial review and the application herein be dismissed.

Observations for the Applicant:

`Introduction

1.  By Form 86 (“Form 86”) dated 10 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 September 2018 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 27 February 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) other than torture risk.

2.  In Form 86, the Applicant has incorrectly named an “immigration centre” as one of the proposed respondents and the Board as the proposed interested party, which I have amended on my own motion.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed in India by his late girlfriend’s family members, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below.[1]  Unless otherwise specified, I will adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  The Applicant has taken out the Leave Application late.  According to Order 53, rule 4 of the Rules of the High Court:

“ (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

  (2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  Section 21K(6) of the High Court Ordinance (Cap. 4) empowers the Court to refuse to grant leave for making an application for judicial review or any relief sought if it considers that there has been an undue delay in making the application. 

6.  For the reasons stated below, I decline to extend the time for the Applicant, taking into account the relevant legal principles established in AW v Director of Immigration [2016] 2 HKC 393 and Re Thomas Lai [2014] 6 HKC 1. 

7.  First and foremost, the Applicant has neither provided an explanation for the delay nor requested an extension.

8.  I am also not convinced that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).  I would have dismissed the Leave Application even if it had been brought within time:

(1)  After reviewing all the information and evidence contained in the Hearing Bundle, including the SCF, the Torture Claim Form, the records of the Applicant’s responses to the list of questions sent to him by the Immigration Officers in July 2013 and February 2018, the Director’s Decision dated 27 February 2018, and the Petition, and applying the relevant law and legal principles relating to the issues and the Grounds, the Board observed that it was evident that the claim lacked sufficient details in significant respects, and the Applicant had failed to provide adequate information concerning the specific allegations (see §§18, 21 of the Board’s Decision).

(2)  The Applicant was absent from the hearing before the Board on 2 August 2018, despite being invited to attend by letter dated 26 June 2018.  The Board noted that, without further evidence from or on behalf of him, the existing evidence could not sufficiently clarify why he left or whether he could not or would not return due to fears of harm as claimed.  Had he attended the hearing, the Board would have had the opportunity to discuss this claim with him in more detail and assess his veracity.  Additional information regarding the matters could have been explored. The Board would also have used the opportunity to discuss the issues and allow him to explain the specific details of his fears and the reasons behind (see §§24-35 of the Board’s Decision).

(3)  The Board did not accept that, at the time he left India in 2013, the Applicant had been threatened by any person in India for reasons of his relationships or any other reasons.  It also did not accept that he was a person of adverse interest to any person or group, including the family of a past or present girlfriend, at the time he left India or that he had become a person of adverse interest to any such person or group since his departure.  Nor did the Board accept, on the evidence, that events, persons, or circumstances in India had any connection or association to any incident that occurred to him in Hong Kong (see §27 of the Board’s Decision).

(4)  The Board found no substantial grounds to believe that the Applicant faced a real risk of being subjected to CIDTP if he returned to India, and his claim on the ground of BOR 3 risk was not substantiated.  Additionally, the Board determined that the Applicant did not have a well‑founded fear of persecution in India, and his claim on the ground of persecution risk was also unsubstantiated.  Furthermore, the Applicant’s assertion of a risk of being arbitrarily deprived of his life was rejected, and his claim on the ground of BOR 2 risk was not accepted (see §§35, 40, 42 of the Board’s Decision).

(5)  The evaluation of the above matters clearly fell within the Board’s jurisdiction.  The Applicant has not provided any grounds to support his intended judicial review: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142.  In his supporting affirmation, the Applicant has simply expressed his disagreement with the Board and stated nothing further. 

(6)  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal: 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, etc.

9.  After considering the Board’s Decision with rigorous examination and anxious scrutiny, I do not find, nor has the Applicant been able to demonstrate, any error of law or procedural unfairness, or any failure on the Board’s part to apply high standards of fairness in the consideration of his non-refoulement claim: see Re Zunariyah (supra) at §22.

10.  Regarding the question of prejudice, it is important to adopt a disciplined approach in applications of this kind to prevent unnecessary disruptions to public administration.  

Conclusion

11.  As I refuse to extend time, the Leave Application is out of time and consequently falls away.

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