Pal Sushil Kumar v. Director of Immigration

HCAL 585/2025

[2025] HKCFI 1672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 585 OF 2025

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 To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 7 March 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (“the Director”) in his Notice of Decision dated 28 March 2023 (the “Notice”) refusing the Applicant’s request to make a subsequent claim for non-refoulement protection (the “Request”) after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).

2.The leave application was filed about 23 months and 8 days after the date of the Notice sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made over 20 months out of time. Extension of time to file the leave application is required.

3.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.Despite clear indication in the Form 86 that an applicant is required to state his reasons for delay, if any, the Applicant gave no explanation for the very substantial delay. It resulted in delay in the processing of his leave application and his non-refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process. Out of extreme caution, the Court considered it in the interest of justice to explore the merits of his subsequent claim before deciding whether to refuse him extension of time to apply.

The background

5.The Applicant is a Nepalese national, now aged 33. His previous claim was made under the following circumstances. He attempted to enter Hong Kong from Mainland China on 14 January 2015. He was refused entry. Then he raised a non-refoulement claim by written signification. In gist, he claimed he would be harmed or even killed by the members of the Nepali Congress Party (the “NCP”) for being a supporter of the Tarai Lok Tantra Party (the “TLTP”) who refused to join the NCP.

6.His previous claim was rejected by the Director, his appeal against the Director’s decision was dismissed by the Board, his application for leave to apply for judicial review of the Board’s decision was refused by the Court of First Instance, his appeal against the court’s decision was refused by the Court of Appeal. Finally, his application for leave to appeal to the Court of Final Appeal was also dismissed on 26 October 2021. He has exhausted all avenues of appeal in relation to his previous claim.

7.On 13 January 2023, he lodged his Request to make a subsequent claim. On 31 January 2023, a letter was served on the Applicant informing him of the requirements for making a subsequent claim, including that he was required to provide further information and evidence in writing in support of his Request on or before 28 February 2023. He was also advised of his right to seek legal representation and the availability of publicly-funded legal assistance provided by the Duty Lawyer Service (“DLS”). He engaged the services of the DLS on 13 February 2023. By a letter dated 14 February 2023, the Director required him to provide further information and evidence in writing in support of his Request on or before 28 February 2023. On 27 February 2023, the DLS informed the Director that the Applicant had declined their services. On the same day, the Applicant’s private legal representative informed the Director that they had instruction to act for the Applicant and submitted a four-page statement prepared under the DLS’s assistance. They requested two to three months’ extension of time to take instruction from the Applicant, to obtain supporting documents and to advise the Applicant. The Director gave them 14 days until 15 March 2023 to submit a written authorization from the Applicant to act for him and to provide further information and evidence. On 15 March 2013, the legal representatives submitted a written authorization but did not submit any further statement or supporting documents. They did not request for extension of time to comply either. On 28 March 2023, the immigration issued the Notice and rejected his Request on behalf of the Director.

The subsequent claim

8.The essence of his subsequent is that his fear on which his previous claim was based still exists, there has been a change of circumstances that has not been foreseeable previously, and the change taken together with his previous claim would give the subsequent claim a realistic prospect of success. He said that the NCP won the election in Nepal in December 2022 and its leader remained as prime minister. He asserted that TLTP members had no option but to join the NCP or be arrested for false charges. He was informed by his siblings in Nepal that the police had approached them and were looking for him. He therefore could not return to Nepal for fear of persecution. He was informed by his father during 2019 and 2020 that his youngest brother was attacked by NCP members while driving a motorcycle and suffered severe bodily injuries. His father told him that his cousin was framed up for a drug case which he did not commit. He was also informed that his two brothers were threatened by a personal assistant of a prominent NCP member to vote for the NCP, which they did out of fear for losing their job and livelihood. He said his family are in the process of obtaining and sending him supporting evidence. He relied on these incidents to support his fear of harm. He requested a screening interview.

The Director’s decision

9.The immigration officer declined to hold a screening interview, for three obvious reasons. First, the Applicant had ample time to produce supporting evidence, but he never did. Second, he had made lengthy submissions in his letters dated 13 January and 27 February 2023 already. Third, the Director nevertheless would assess his Request on all available information, even assuming what he asserted in his Request and statement had happened and the documents were available before the Board which he claimed his family were attempting to obtain for him.

10.The immigration officer found that the threat the Applicant is allegedly facing in the subsequent claim is the same as that raised in his NCF in the previous claim, ie the NCP’s threat to harm him for not joining the party. His subsequent claim is just a continuation of his previous claim. What is new or the change in circumstances is that the NCP is now trying to locate him. Evening assuming that is true, in view of the previous finding of low intensity and low frequency of past ill-treatment and his low level involvement in the TLTP, the immigration officer found there was no reason for the members of the NCP to take such an effort to recruit him. Therefore, the officer found his fear that something bad would happen to him on his return to Nepal is his mere speculation without evidential support.

11.As for the alleged assault on his youngest brother, the officer found it is all based on double hearsay lacking in supporting evidence. The officer considered the documents which the Applicant claim his family were in the process of obtaining but have hitherto not obtained could not go that far as to prove his assertion that his assailants were NCP members. As for the police refusal to register his brother’s complaint, the officer found that was only the misconduct of the policemen in a single or particular police station which without more should not be taken as official acquiescence. In addition, the Board had found in the previous claim that adequate state protection and internal relocation are available.

12.As for his allegation that his brothers were threatened and forced to vote for the NCP, the immigration officer found it was their volition not to seek assistance from the police regarding the threat and the local authorities regarding irregularities in the election. As such, the officer found this allegation could not advance his Request further.

13.As for his allegation about the false charges against him, there is a complete lack of particulars of the false charges and the source of the information, not to mention credible supporting evidence. His evidence is that it has come to his knowledge that his name has been dragged into some false police cases and that his siblings had informed him that the police were looking for him for some serious offences. His allegation is based solely on hearsay. He said his family were trying to obtain a copy of the police complaints against him, but so far nothing has been produced. The immigration officer found the Applicant’s allegation is his mere speculation. Even if the police had found him and put his case to the court, it is only a normal action or investigation of alleged offences. Fear of being arrested for criminal liability is not a basis for non-refoulement protection. In addition, it was found in the previous claim that his dispute with members of the NCP was a personal and private dispute and it did not follow that every act by the individual members of NCP would necessarily be instigated by, or have the consent or acquiescence of a public official or other person acting in an official capacity of the government of Nepal.

14.Having considered the above and the availability of state protection and feasibility of internal relocation as determined under the previous claim, the immigration officer was of the view that the alleged change in circumstances when taken together with the material submitted in support of the previous claim would not give the subsequent a realistic prospect of success. Hence, he refused his Request to make a subsequent claim.

Legal principles applicable to judicial review

15.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[3].

Grounds for judicial review

16.The Applicant did not advance any ground of review in his Form 86 or supporting affirmation. He merely annexed a copy of the Director’s Notice to his affirmation. At the hearing, after the legal principles in the above section had been explained to him, he said he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. He said he will return to Nepal in a month or two as he is going to be married there.

17.In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Director’s Notice.

Overall scrutiny

18.Having rigorously examined the Director’s Notice, the papers and the evidence with anxious scrutiny, this Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to subsequent claims for non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Despite the absence of documentary evidence which the Applicant claimed his family were attempting to obtain for him from Nepal and which is not yet available, the immigration officer assessed his claim on the basis of all available information, including the documents as he asserted. The officer considered his claim thoroughly. He found the Applicant’s dispute with the members of the NCP was a personal and private dispute in which the government of Nepal was not involved. There was no question about state acquiescence in the alleged ill-treatment of the Applicant. The officer found the subsequent claim is based solely on the Applicant’s own assertions, hearsay or speculation which are not supported by any credible evidence. It was on that basis that the officer found the alleged change in circumstances when taken together with the material submitted in support of the previous claim would not give the Applicant’s subsequent a realistic prospect of success. This is a mixed finding of fact and of the law. Insofar as it is a finding of the law, it is absolutely correct. Insofar as it is a finding of fact, it is exclusively within the realm of the Director, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Notice is irrational. The Court could detect no error of law or procedural unfairness in the Notice. The Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his entitlement to make a subsequent claim. The Notice is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

19.As the Applicant has offered no explanation for the substantial delay, the Court could have no factual basis on which to exercise its discretion to grant him extension of time to file the leave application. Having also rigorously examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant him extension of time to file the leave application. Furthermore, a person in genuine fear for his safety if refouled would have wasted no time to apply as this is his last opportunity to challenge the Board’s decision. The Applicant’s unexplained delay not only evinced a lack of intention to prosecute his leave application, but also reflects an underlying lack of merits in his leave application and his non-refoulement claim. His conduct resulted in delay in his refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process. For these reasons, extension of time to file the application for leave to apply for judicial review and the leave application are refused.

20.As the Applicant had indicated his intention to return to Nepal in a month or two, this Court does not find it necessary to impose a restricted proceeding order which it would otherwise have made in the circumstances.

Dated the 28^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