Harblas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1517/2020

[2025] HKCFI 5321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1517 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.  The Form 86 is amended on the Court’s own motion, naming the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative 1st Respondent, naming the Director of Immigration as the Putative 2nd Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “Decision of the Director of Immigration dated 15 June 2018, and decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office 9 October 2019” in place of the words “15/7/2020”; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of India.  By a Form 86 filed on 17 July 2020 (“Form 86”), and a supporting affirmation also filed on 17 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of an unnamed body, but which decision he claimed in the Form 86 was made on “15/7/2020”, and as to which:

a.   In the Form 86 he said he was “not satisfied with it” and named the “Immigration Department” and the Torture Claims Appeal Board (“TCAB”) as the putative respondents, and the Department of Justice as the putative interested party; and

b.   In the Affirmation (to which no documents were exhibited), he said “I would like to apply judicial review against the decision of [TCAB]. I don’t want to go back to my home country Because my life still in dangure(sic).”

2.The Applicant sought an oral hearing of his application, and one was scheduled for 13 August 2025. However, he did not appear at the hearing. I have hence dealt with his application on the papers.

Background

3.There was no decision dated or made on 15 July 2020 in relation to the Applicant by any of the Director of Immigration (“Director”), the TCAB, or the Non-Refoulement Claims Petition Office (“NRCPO”).

4.However, the following decisions were reached in relation to the Applicant:

a.  A decision of the Director dated 15 June 2018 (“Director’s Decision”) in relation to the Applicant’s claim for non-refoulement relief. The said claim was made based on the fear that he would be harmed or killed on return to India by 4 people who had robbed his employer’s shop because he was able to recognise them at an identity parade, and was assessed and rejected in the Director’s Decision on the grounds of Torture Risk[1], BOR 3 Risk[2], BOR 2 Risk[3] and Persecution Risk[4]; and

b.  A decision of the TCAB/NRCPO dated 9 October 2019 (“TCAB Decision”) [5] which was reached pursuant to both the Applicant’s Notice of Appeal/Petition against the Director’s Decision dated 15 June 2018, and a hearing before the TCAB/NRCPO on 9 October 2019 at which the Applicant had applied to withdraw his appeal/petition.

5.As the Applicant may have sought leave to apply for judicial review of both the Director’s Decision and the TCAB Decision, I have amended the Form 86 of my own motion to reflect such apparent intention, the relevant putative respondents and interested party, and the nature of the relevant decisions.

6.The background to the Applicant’s claim and how it was determined is set out in the Director’s Decision and the TCAB Decision, which contents I will not repeat.

Legal Principles

7.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).

8.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).

9.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).

10.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

11.The application was filed more than 3 months after the Director’s Decision and the TCAB Decision. Indeed, it was filed over 8 months after (and hence over 5 months out of time as to) the TCAB Decision.

12.I do not see any good reason 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 dismiss the application for leave to apply for judicial review.  This is for the following reasons.

13.Dealing, firstly, with the Director’s Decision, and even putting aside the timing of the application, the attempt to seek leave in relation to such must be rejected given that that once the Applicant had pursued his appeal to the TCAB/NRCPO, the Director’s Decision was no longer susceptible to judicial review. Further, no exceptional circumstances have been suggested to me that would justify such an application (Moshsin Ali [2018] HKCA 549; Ali Usman [2018] HKCA 955 at §21; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18; Ali Usman [2018] HKCA 955 at §21).

14.Secondly, the Applicant has not identified or set out any grounds of judicial review in relation to the TCAB Decision, whether in the Form 86 or in the Affirmation. Insofar as he asserts in the former that he is “not satisfied with” the TCAB Decision, that does not amount to a ground of judicial review given that such fails to identify any public law error, much less one supported with requisite reference to underlying particulars (Re: Haider Khalil [2021] HKCA 223 at §16 and Akhondo Shakhil [2021] HKCA 1616 at §15 citing inter alia Re: Mizan Sikder [2019] HKCA 20).

15.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision (also in the context of the Director’s Decision) with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness as well as the allegations mentioned in the Affirmation.

16.It is clear from the TCAB Decision that the Applicant had, during the oral hearing of his appeal/petition to the TCAB/NRCPO, applied to withdraw his appeal/petition as the Applicant had considered it safe for him to return to India. The TCAB/NRCPO then considered that application, was satisfied that it was freely sought and that he understood the consequences of the withdrawal, and that there was good reason for it. It hence directed that the appeal/petition be withdrawn and stated that the appeal/petition had been disposed of and finally determined by the TCAB/NRCPO, which would take no further action in respect of such.

17.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 and justify the grant of leave. On the evidence, the Applicant himself validly withdrew his appeal of his own volition and free will. There is also no allegation (let alone supporting evidence) that such withdrawal was invalid. I therefore see no reasonable argument that the TCAB/NRCPO committed any public law error when it accepted the Applicant’s valid withdrawal, confirmed the Director’s Decision, and hence disposed or and finally determined the appeal (HT (Hussain Tasawar v Betty Kwan [2017] 2 HKLRD 567 at §§37-41; approved in Ali Usman, supra, at §§23-25 and in Das Purnima [2019] HKCA 669 and [2019] HKCA 867; see also Abdul Wahab [2023] HKCFI 715 at §§22-30 and [2025] HKCA 409 at §24).

18.I also do not see that the Applicant’s bare and unsupported claim in the Affirmation that he does not want to go back to his home country as his life is still in danger is in any way relevant to the present application, given both the analysis and findings in the TCAB Decision and the nature of judicial review proceedings.

19.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.

20.Secondly, there is also undue delay in relation to the application for leave. Again, there is no request for an extension of time to make the application in the Form 86, or indeed any explanation for the undue delay, in particular that relating to the TCAB Decision.

21.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.  Indeed, even if there were an acceptable explanation for the delay, I would still exercise my discretion not to extend time, given the other matters herein.

Conclusion

22.In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

Dated the 21^st day of November 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