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

HCAL 472/2020

[2025] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 472 of 2020

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 Levy:

1.   The Form 86 is amended on the court’s own motion.

2.   The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 October 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 February 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000472_2020_files/the_Board's_Decision.pdf

2.In the applicant’s Form 86, the applicant named the Director as the proposed respondent.  As the Board should have been the proper respondent, the Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncle who wished to take away the farmland of the applicant’s father. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 21 May 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.In his Form 86, the applicant did not raise any grounds for judicial review.  In his supporting affirmation, he stated that the Board’s Decision is unfair and unreasonable.  However, he did not provide particulars in support of his grounds.

8.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant said he had nothing to say.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board rejected the claim because it found that the future risk of harm is low, due to the low intensity and frequency of past ill-treatment.  The Board also found that reasonable state protection is available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision in either his papers that he has filed or at the hearing.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

11.More importantly, this Leave Application was filed out of time. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  Hence, the deadline for the filing of the Leave Applicant was 9 January 2020, and this application is late for more than 2 months.

12.Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others,  (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge.  Whilst I do not consider that the period of delay is substantial, the applicant will need to provide good reason for the delay. 

13.At the hearing, the applicant initially told the court that the delay was due to his imprisonment.  However, after the court had drawn to his attention that according to the address stated at the letter enclosed after the Board’s Decision, a residential address was stated.  The applicant then said that he had not received the Board’s Decision.  It was not until his lawyer came to visit him in a correctional institution he found out that his appeal to the Board was rejected. His lawyer then prepared the documents on his behalf for the filing of the Leave Application. 

14.After having considered the applicant’s explanation given at the hearing, I do not accept his reason for the delay.  In my view, his account was incoherent at best, unconvincing at worst.  Having taken into consideration of the little prospect of success of the intended challenge discussed above, I refuse to extend.

Orders

15.The Form 86 is amended on the court’s own motion.

16.The Leave Application be dismissed.

Dated the 4^thday of June 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