Kottin Philippe v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 613/2020

[2025] HKCFI 3878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 613 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 from the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 dated and filed on 14 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 3 January 2020 [1] (“the TCAB Decision”). The TCAB Decision was exhibited to the Applicant’s supporting affirmation, also dated and filed on 14 April 2020 (“the Affirmation”). I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

3.I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative Respondent, the proper putative Interested Party, and the nature of the decision.

Background

4.On 11 August 2016 the Applicant made a non-refoulement claim to the Director of Immigration (“Director”). His claim was eventually assessed on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and rejected as not being substantiated in a decision of the Director dated 21 May 2018 (“Director’s Decision”).

5.As recorded in the TCAB Decision, the Director’s Decision was sent to the Applicant on Monday 21 May 2018 care of his legal representative assigned by the Pilot Scheme Office. The Applicant filed his Notice of Appeal/Petition on Monday 9 July 2018.

6.The TCAB/NRCPO handed down the TCAB Decision on 3 January 2020, which dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

7.As the 3-month deadline under RHC O. 53 r. 4(1) had expired on 3 April 2020, the Applicant’s leave application was filed 11 days out of time. He has not given any explanation for this.

Legal Principles

8.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

9.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

10.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

11.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

12.I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and leave to apply for judicial review. This is for the following reasons.

13.Firstly, as to the substantive application, the Applicant has failed to identify or set out any grounds of judicial review in the Form 86 or Affirmation. Hence there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

14.However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness. Pursuant to such, and for reasons below I conclude that the application is unmeritorious.

15.The TCAB Decision began by setting out the events that took place starting from the making of the Director’s Decision. It outlined the dates in question with regard to the question of delay, the evidence adduced by and obligation of the Applicant, and the relevant issue having regard to the provisions in the Immigration Ordinance (CAP. 115)[8](“the Ordinance”), as well as the three-stage test in Secretary of State for the Home Department v Begum (2016) EWCA Civ 122.

16.The decision-maker then applied the three-stage test with reference to the evidence before him, and in doing so considered the merits of Applicant’s underlying claim as dealt with in the Director’s Decision. He concluded that there were no other matters known to him, or revealed by the factual basis of the Applicant’s claim, that amounted to special circumstances that might make it unjust not to allow the late filing (see Khan Kamal Ahmed [2019] HKCA 377; Qasim Ali [2019] HKCA 430; Atienza Chona Marasigan [2020] HKCA 23 at §§24-25). Accordingly, the application for late filing was refused.

17.From my examination and scrutiny I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision.

18.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

19.Secondly, and in any event, there is undue delay in this case as the leave application was filed 11 days out of time[9]. Despite this, there is neither a request for an extension of time to make the application in the Form 86, nor any explanation for the undue delay.

20.Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.

21.In the circumstances, I see no good reason to extend time for leave to apply for judicial review, and I do not consider that I should grant such an extension. I hence refuse to grant such an extension and to grant leave to apply for judicial review.

Conclusion

22.In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out above.

Dated the 5^th day of September 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