Amarjit v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2375/2024 on BabelCite. This High Court CFI judgment was delivered on 9 May 2025.
1. This is an application by Mr Amarjit (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 July 2024 (“Board’s Decision”) when the Board refused the Applicant’s application for late filing of a notice of appeal (“NOA”) against the decision by the Director of Immigration (“Director”) dated 23 June 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).
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HCAL 2375/2024 [2025] HKCFI 1869 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2375 of 2024
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Mr Amarjit (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 July 2024 (“Board’s Decision”) when the Board refused the Applicant’s application for late filing of a notice of appeal (“NOA”) against the decision by the Director of Immigration (“Director”) dated 23 June 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”). Background of the Applicant and the Claim 2.The Applicant is an Indian born on 20 November 1985. 3.He was born a Sikh. He claimed that the family of his late wife (“AN”) in India wanted to harm or kill him because he married their Christian daughter. According to the Applicant, he started dating AN when he was about 16 years old (i.e. in around 2001). They had to keep their relationship secret because AN was a Christian. They were worried about being killed because of past incidents of honour killings in rural India motivated by different religious backgrounds. 4.After two years of dating, the Applicant wanted to marry AN. His father locked him up and beat him for trying to marry a Christian woman. He managed to escape after being locked up for 4 or 5 days and fled to Delhi. AN informed the Applicant about her parents’ objection to AN marrying him and he asked her to come to Delhi. 5.While in Delhi, the Applicant converted to Christianity and he married AN in a church. After the wedding, the Applicant and AN went to live in Nawanshahr. About a month later, when the Applicant went back to his house after visiting his friend, he saw AN lying motionless on the ground. Before the Applicant could find out what happened to AN, he was attacked by AN’s father, brothers and uncles and other men, who tried to frame him for killing AN. The Applicant was taken to the local police station for 5 or 6 days. The police beat him 2 or 3 times a day and he was only released after his father paid bribes to the police. 6.The Applicant had to report to the police station 3 times a week. One day, the police told him that a charge would be laid against him soon, so he fled from India to Thailand. While in Thailand, he learnt from his friend that the police had come to his home to look for him and he was a wanted person in India. He then came to Hong Kong as a visitor. 7.The Applicant made a torture claim on 14 November 2006 under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The CAT Claim was withdrawn on 3 August 2011. 8.He lodged another claim for non-refoulement protection (i.e. the NRC) on 22 August 2013. The Director assessed the NRC on all applicable grounds under the unified screening mechanism. 9.By the DOI Decision, the Director refused the NRC. The Applicant later filed an appeal/petition to the Board (“Appeal”), which was received by the Board on 11 June 2024. 10.Under section 37ZS(1) of the Immigration Ordinance, Cap. 115 (“Ordinance”), a person who wishes to appeal against a decision of the Director rejecting a non-refoulement claim, must file with the Board a notice of appeal within 14 days after notice of decision is given to that person, unless late filing of the notice is allowed by the Board under section 37ZT(3) of the Ordinance. 11.The Applicant did not bring the Appeal within the 14-day period prescribed by section 37ZS(1) of the Ordinance. Under section 37ZT(2) of the Ordinance, the Board had to decide, as a preliminary decision without a hearing, whether to allow the application for late filing of the NOA. 12.The Board found that the Applicant was deemed to have received the DOI Decision, which also served as notice of the Director’s decision (“Notice”), on 26 June 2017 under section 37ZV(1)(b)(i) of the Ordinance. The Board found that the Applicant was almost 7 years late in filing the NOA. 13.In the NOA and a letter dated 25 June 2024, the Applicant claimed that he did not receive the DOI Decision and that he was only made aware of the DOI Decision after he queried about the status of the NRC while being imprisoned. 14.The Board noted that the Applicant did not give any particulars as to when he was taken into custody or the date when he first became aware of the existence of the DOI Decision. In the circumstances, the Board was not satisfied that the Applicant had exercised all due diligence to file the NOA within time or there were circumstances beyond his control that caused him to file the NOA with serious delay. The Board therefore by the Board’s Decision refused his application for late filing of the NOA. 15.On 5 December 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents and interested parties. Legal principles applicable to judicial review 16.In a judicial review, the court does not step into the shoes of the decision makers. 17.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
18.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 reasonably arguable claim which enjoyed realistic prospects of success. Discussion 19.The Applicant filed the Form 86 on 5 December 2024. 20.Order 53 rule 4(1) of the Rules of the High Court provides that:
21.The Board’s Decision was issued on 12 July 2024. As such, the Applicant should have filed the Form 86 latest on 14 October 2024 (12 and 13 October 2024 being Saturday and Sunday). 22.The Applicant was late by 52 days in filing the Form 86. This was a substantial delay. No explanation had been provided in the Form 86 or the Supporting Affirmation for the late filing of the Form 86. The Applicant had not applied for time extension to file the Form 86. 23.The Applicant attended the court hearing of 20 March 2025 (“Court Hearing”) and said that he was detained since 9 February 2024 and it took more times for him to get documents and prepare for this application while he was in custody. 24.I note that the address of the Applicant stated in the Form 86 was Tai Tam Gap correctional institution. I accept that he was in custody when the Board’s Decision was issued (i.e. on 12 July 2024). The Applicant did not file the Form 86 until 4 December 2024, i.e. more than 4 months after the issuance of the Board’s Decision. I accept that it would take more time for the Applicant to get documents and to prepare for this application while he was in custody. However, I am of the view that in the circumstances of this case, taking more than 4 months to prepare for this application for leave for judicial review was still excessive. 25.For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matters. 26.In the Form 86, the Applicant did not put forward any ground for his intended judicial review. 27.In the Supporting Affirmation, the Applicant attached a handwritten statement putting forward the following grounds for his intended judicial review:
28.In relation to Grounds (1) and (2), the Applicant submitted at the Court Hearing that it was unfair for the Board to decide his application without a hearing. This was misconceived. The Board was not required to hold a hearing for the application for late filing or send any questionnaire to the Applicant under the procedure provided by section 37ZT(2) of the Ordinance. 29.Section 37ZT(2) of the Ordinance expressly provides that the Board must decide, as a preliminary decision without a hearing, whether to allow the application for late filing of the notice of appeal and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons (emphasis added). 30.The statutory regime does not require the Board to send any questionnaire to the Applicant nor to hold any interview or oral hearing. The Board had been dealing with the Applicant’s application for late filing of the NOA in accordance with the statutory provisions. I see no merits in the Applicant’s aforesaid complaints. 31.Grounds (3) and (4) were bare assertions without particulars. Such grounds are not reasonably arguable in a judicial review without particulars or specifics. 32.At the Court Hearing, the Applicant said that he did not receive the DOI Decision as he was in prison from September 2017 to February 2024 and he had no legal assistance. 33.I note from §§5-7 of the Board’s Decision that the Applicant was legally represented by the Duty Lawyer Service in submitting the NRC to the Director until 14 March 2017 although he was not legally represented at the time when the DOI Decision was sent to him. 34.The DOI Decision was issued on 23 June 2017. The Board found that the Applicant was deemed to have received it on 26 June 2017. (§18 of the Board’s Decision) As such, the time for the Applicant to file the NOA had long expired on 10 July 2017 before the Applicant was put into prison in September 2017. 35.The Board noted in §§22-24 of the Board’s Decision that the Applicant claimed that he became aware of the DOI Decision after he came to prison and asked for an update on the status of his application. He said that he had previously been unaware of the DOI Decision and that was why he did not apply to the Board within time. The Applicant did not submit any documentary evidence in support of his late filing application. 36.After considering the aforesaid explanation of the Applicant for late filing of the NOA, the Board found that the Applicant had not provided detailed information about when he was taken into custody and imprisoned or the date on which he claimed he was first informed that the Director had refused his application for non-refoulement protection. Moreover, the Applicant had not provided any evidence or information to challenge the method by which the Director delivered the DOI Decision to him, or to indicate that he had given the Director a different residential address for service of documents prior to the DOI Decision being sent to him or that he was in custody or prison at that time. 37.The Board further found that the Director had complied with section 37ZV(1)(b)(i) of the Ordinance by giving the Notice to the Applicant by posting it to his “last known residential or correspondence address provided by the claimant to the Director”, and that in accordance with the deeming provision of section 37ZV(3) of the Ordinance, the Applicant was taken to have received the Notice on 26 June 2017. The Applicant had not provided any evidence to the contrary. 38.The Board was of the view that as an applicant for non-refoulement protection, the onus was on the Applicant to inform the Director and/or the Immigration Department of any changes to his residential or postal address to ensure that he received correspondence relating to his application. The Board did not consider that the Applicant had “exercised all due diligence” to file the NOA within 14 days of the Notice being given to him or that there were circumstances beyond his control that caused him to file his appeal almost 7 years after he was deemed to have received the Notice. 39.As pointed out in the Nupur Mst case (supra), the court would not intervene into the decision of the Board by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision. 40.In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the proceedings for the Applicant’s application for late filing of the NOA. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success. Conclusion 41.The Form 86 was filed out of time and without leave of the court. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the Board’s Decision, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 9th day of May 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
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