Khristi Ketankumar Johnbhai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 269/2020

[2025] HKCFI 4779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 269 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 be amended in the court’s own motion.

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review against the Board’s Decision dated 6 December 2016 out of time.

3.   The application for leave to apply for judicial review against the Board’s Decisions dated 6 December 2016 and 6 January 2020 be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 24 January 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 “14 May 2015”.

2.In the Form 86, the applicant named “TCAB” as the proposed respondent and named “stay in Hong Kong and TCAB decision” as the interested party. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion

3.There were two hearings respectively held on 26 August and 18 September 2025, in which the applicant attended in person.

4.At the hearing on 18 September 2025, the applicant clarified that he had in fact intended to apply to review two decisions of the Board, which are dated 6 December 2016 (“Board’s 1^st Decision”) and 6 January 2020 (“Board’s 2^nd Decision”), respectively  dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) respectively dated 31 October 2014 and 11 April 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s 1^st the 2^nd Decisions can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000269_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000269_2020_files/2nd_Board's_Decision.pdf

5.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.

6.The Board’s 1^st Decision dealt the Director’s 1^st Decision concerning the grounds based on “torture risk”, “BOR 3 risk” and “persecution risk”. The Board’s 2^nd Decision dealt with the Director’s 2^nd Decision concerning “BOR 2 risk”. The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by members of the BJP

7.Applying the principle of high standards of fairness, the court ordered further amendment to the Form 86 to include the Board’s 1^st and 2^nd Decisions.  Hence, the Leave Application is in respect of 1^st and the 2^nd Board’s Decisions.

Discussion

8.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.

9.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.   

10.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

11.At the two hearings on 26 August and 18 September 2025, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said that in Hong Kong he could enjoy religious freedom. If he were to be returned to India, he would either be killed by the religious extremists or forced to drop his Christian religion and convert to Hinduism.

12.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]

Board 1^st Decision

13.In the Board’s 1^st Decision, in assessing the applicant’s credibility, the Board found the applicant was dishonest and his story unreliable. The Board found that he was not an honest and genuine non-refoulement claimant.  The Board further found that the past ill-treatment did not meet the requisite level of severity. It was also found that both state pprotection and internal relocation were both reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

14.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.  I am satisfied that the Board was entitled to reject his claim after having found the applicant to be incredible especially the applicant’s delay in the raising of the non-refoulement claim.  The applicant has not advanced any grounds, whether written or oral, in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s 1^st Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to extend time for the late application

15.Another matter I need to consider is the delay. 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. The applicant was late for more than 3 years. I consider the period of delay is lengthy and substantial.

16.In his explanation for the delay, the applicant stated that when the Board’s 1^st Decision was delivered, he lived in a factory and provided his friend’s address as the correspondence address. His friend did not pass the Board’s 1^st Decision to him. By the time he had received the Board’s 1^st Decision, it was already late.  

17.I find the applicant’s explanation above unreasonable, and do not accept it. The applicant only gave a vague explanation without specifying when he had actually received the Board’s 1^st Decision.  Having regard to the long and inordinate delay without a good explanation as well as the lack of merits, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Board’s 2^nd Decision

18.After the Board’s 1^st Decision, on 10 March 2017, the Director invited the applicant to submit additional facts, which he considered relevant to his non-refoulement claim on all applicable grounds, including the ground on BOR 2 risk.  When the Director did not receive any reply from the applicant, the Director went on to assess the BOR 2 risk ground, and decided that the applicant failed to establish any BOR 2 risk. The applicant’s appeal to the Board was late for 27 days.

19.The same constituted Board considered the applicant’s appeal on paper.  The Board decided that the applicant would have to “bear the consequence” for his change of address that led to his non-receipt of the Director’s 2^nd decision in time for him to file the appeal.  The Board concluded that the facts the applicant submitted in support of the appeal did not amount to special circumstances, which might amount to special circumstances that would render it unfair or unjust in disallowing the late filing of the applicant’s notice of appeal.

20.In considering the applicant’s intended challenge to the Board’s 2^nd Decision, I need to consider the relevant authorities concerning the late filing of the appeal to the Board.  In Re Khan Kamal Ahmed[5] and Re Qasim Ali[6] , the Court of Appeal held that under s. 37ZT (2)(b) and (3) of the Immigration Ordinace, it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20]. 

21.When considering whether to allow the late filing of the notice of appeal, a Board is required to take into account “any other relevant matters of fact within the knowledge of the Board” under s.37ZT (2), which includes a duty to “take the merits of the applicant’s case into account”:See Re Khan Kamal Ahmed [17]-[20].

22.Recently, the Court of Appeal in Re Doyaoen Josephine Biba[7] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2^nd Decision on BOR 2 risk. 

23.In the present case, I consider the facts are very similar to the one considered by the Court of Appeal in Re Doyaoen Josephine Biba. In Re Qasim Ali, the Board did not consider the merits of the applicant’s intended appeal in relation to all four applicable grounds for non-refoulement. In the present case, the Board, by the Board’s 2^nd Decision, had only barred the applicant’s intended appeal regarding his claim based on the BOR 2 risk, as opposed to all applicable grounds, Following the case of Kulwinder Kaur v Director of Immigration[8], the Court of Appeal accepted (at [59]) that the issues under the BOR 2 risk are not separable from those under the BOR 3 risk. This essentially meant “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”: Re Doyaoen Josephine Biba at [27]. Applying the reasoning of the Court of Appeal in Re Doyaoen Josephine Biba , I take the view that had the Board considered the merits of the applicant’s intended appeal against the Director’s 2^nd decision, the Board would have reached the same conclusion that the applicant failed to establish his claimed fear of harm under the BOR 3 risk. Similarly, I find that the applicant’s intended challenge to the Board’s 2^nd Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Orders

24.The Form 86 be amended in accordance with [2] and [7] above.

25.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review against the Board’s Decision dated 6 December 2016 out of time.

26.The application for leave to apply for judicial review against the Board’s Decisions dated 6 December 2016 and 6 January 2020 be dismissed.

Dated the 17^th day of October 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