Sita Chhetry Alias Sita Chhetri v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 3684/2019[2025] HKCFI 1164

Court

High Court CFI

Date27 Mar 2025

Judge—

Case Document

100%Judiciary

HCAL 3684/2019

[2025] HKCFI 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3684 of 2019

BETWEEN
	Sita Chhetry alias Sita Chhetri	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong

1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) 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 10 December 2019 (the “Form”), the Applicant applied for 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 29 May 2014 (the “Board’s Decision”).

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

3.The Applicant had requested an oral hearing for the present application. However, she did not turn up at the hearing. I note from the record that the Applicant was reminded of the hearing by phone on 4 March 2025 and she confirmed that she would be okay to attend.

Background

4.The Applicant’s background, the basis of her claim and the arguments she 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.

Discussion

5.The Board’s Decision was issued on 29 May 2014. As such, taking into account the court vacation, the Applicant should have filed the Leave Application on 29 September 2014 at the latest. The Form was however only filed on 10 December 2019. There had been delay of more than 5 years.

6.No application for extension of time to file the Leave Application was made by the Applicant. There is equally no explanation for the substantial delay.

7.In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

8.In the present case, the delay of more than 5 years was plainly substantial and inordinate. There is no explanation for such lengthy delay. I note that on 25 January 2019, the Director had issued a letter to the Applicant, pointing out that the Applicant had failed to return the completed Supplementary Claim Form on or before 9 January 2019 as requested. As such, her non-refoulement claim had been treated as having been withdrawn. The above conduct of the Applicant casts doubt on the seriousness of the Applicant in pursuing her claims. It is more likely that the Applicant only made the present application (with no grounds in support), and the application and petition below, to delay the refoulement.

9.As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time for judicial review, I shall proceed to consider the merits of the Leave Application.

10.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non‑refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

11.In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.

12.I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. In fact, the Applicant has not provided any grounds in support of the Leave Application, and she chose not to attend the hearing and make submissions despite having requested such hearing in the first place and having been reminded of the hearing. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

13.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

14.As the Form was filed substantively out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time and the Leave Application is hereby dismissed. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 27^th day of March 2025

	(Alfred Chan)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27/3/2025 Sita Chhetry alias Sita Chhetri Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/3/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: TCAB 768/13/9/48/N118 Director of Immigration Putative Interested Party’s ref. no.: RBCZ2002450/14 (formerly 1022/07), QA T/C 341/07 (formerly RBCZ 1022/07) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)