Darshan Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3655/2019

[2025] HKCFI 1459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3655 of 2019

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

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 9 December 2019, 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 24 February 2011 (“the Board’s Decision”) as confirmed by him at the oral hearing.

2.On my own motion, I have amended Form 86, correctly naming only the Board as the proposed respondent and the Director as the proposed interested party.

Background

3.The Applicant’s personal background, the incidents alleged to show that he would be in danger of being subjected to torture in India if returned, and the immigration and procedural history, etc. were set out in the Board’s Decision.  I do not see it necessary to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise indicated, the Board’s abbreviations and descriptions are adopted below. 

Discussion

4.Order 53, rule 4 of the Rules of the High Court provides:

“(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.It is clear that the Leave Application in this case is made out of time.

6.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.  Applying the legal principles set out by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 and by G Lam J (as he then was) in Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1, I am not satisfied that time should be extended for the Applicant.

7.First of all, the delay in question is very substantial and excessive. The Applicant has neither applied for extension of time, nor explained the delay in his supporting affirmation.

8.Second, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success at all: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.  The Applicant is unable to identify any public law grounds in support: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.  After rigorously examining and anxiously scrutinizing the Board’s Decision, I fail to see any basis or ground to challenge its legality, rationality or fairness.  In these circumstances, it is not for the Court to usurp the role of the primary decision maker or intervene by way of judicial review: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

9.Third, it is inappropriate to focus solely on the prejudice that the Applicant may experience if time were not extended.  It is equally important to consider the prejudice that may be resulted to public administration if a frivolous and unmeritorious leave application is allowed to proceed out of time.  Unless a disciplined approach is adopted in applications for judicial review like the present one, public administration will be significantly disrupted. 

Conclusion

10.As I refuse to extend time for the Applicant to apply for leave to apply for judicial review, the Leave Application is out of time and falls away.

Dated the 25^th day of April 2025

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