Case Document

100%Judiciary

HCAL 2115/2020

[2025] HKCFI 5760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2115 OF 2020

BETWEEN
	Hardial Singh	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 22 October 2020.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 18 September 2018.

4.  The applicant is directed to issue an originating summons for the intended judicial review on or before 16 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 22 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-

“Decision made by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 18^th September 2018 affirming the Notice of Decision made by the Director of Immigration dated 16^th November 2012.”

2.The Torture Claims Appeal Board (“the Board”) only made one decision on 18 September 2018 (“the Board’s Decision”), which rejected the applicant’s late filing of his Notice of Appeal/Petition (“NoA”) against the decision of the Director of Immigration (“the Director”) dated 16 November 2012 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002115_2020_files/the_Board's_Decision.pdf

Amendment

4.In Form 86, the applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the putative respondent, when only the Board should be so named.

5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

Late application

7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.Form 86 was filed on 22 October 2020, which was more than 25 months after the Board’s Decision (made on 18 September 2018). The applicant was hence late for more than 22 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

11.The delay in the present case was very substantial. However, as discussed below, this court is of the view that there are merits in the Leave Application. Hence, this court will grant an extension of time to the applicant to file the Leave Application out of time on 22 October 2020.

The applicant’s case

12.It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of the NoA.

Oral hearing

13.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 6 November 2025.

14.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

15.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

16.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

17.The applicant stated in his Form 86 under the heading “Grounds on which Relief is sought” some general grounds for the intended judicial review. Further, the applicant asserted in his supporting affirmation dated 22 October 2020 that he was not in possession of any of his document but he would be in a position to submit the rest of the documents upon his release.

Discussion

18.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.Thus, apart from the various grounds for the intended judicial review as advanced by the applicant, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

20.It is clear from the Board’s Decision that the Board did not consider the merits of the applicant’s appeal/petition at all.

21.In concluding that there was no basis on which it could exercise the statutory discretion to extend time for the applicant to file his NoA, the Board only took into consideration that the applicant provided no reason for his delay of over 5 years.

22.The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

23.In other words, in failing to consider the merits of the applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision.

24.This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable. It is therefore unnecessary for this court to deal with the grounds for the intended judicial review as asserted by the applicant.

25.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

26.For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 22 October 2020, and leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

27.The applicant is directed to issue an originating summons for the intended judicial review on or before 16 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 2^nd day of December 2025

( Irene LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 2 December 2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 2 December 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 10811/18/3/263/IN2069 Director of Immigration Putative interested party’s ref. no.: QA T/C 877/12 (formerly RBCZ/518/06) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)