Rakesh Kumar v. Non-refoulement Claims Petition Office

HCAL 1435/2020

[2025] HKCFI 5722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1435 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 only the Non-Refoulement Claims Petition Office as the Putative Respondent, and only the Director of Immigration as the Putative Interested Party;

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

Observations for the Applicant:

Introduction

1.The Applicant is a citizen of India.  By a Form 86 filed on 9 July 2020 (“Form 86”), and a supporting Affirmation also filed on 9 July 2020 (“Affirmation”), he sought leave to apply for judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 5 October 2018 (“NRCPO Decision”)[1], which was exhibited to his Affirmation.

2.I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

3.The Applicant sought and attended the oral hearing of his application, which took place on 7 August 2025, and made some submissions in relation to the topic of delay. I address such below.

4.I have amended the Form 86 to properly identify the putative respondent and the putative interested party.

Background

5.This is set out in the NRCPO Decision and in the Director’s Further Decision (defined below).  I will not repeat the contents thereof, but in summary:

a.  The Applicant’s claim was that if he were sent back to India he would be harmed or killed by Amarjit (the husband of Rajvinder), and by Rajvinder’s brother;

b.  The Applicant lodged a torture claim[2] which was rejected by the Director of Immigration (“Director”) in a decision dated 20 January 2012 (“Director’s Decision”);

c.  The Applicant filed a Notice of Petition against that decision, which was rejected on 29 February 2012;

d.  On 26 April 2013 he applied for non-refoulement protection on the grounds of CIDTP.  He also submitted an SCF dated 24 November 2016.  The claim was subsequently assessed by the Director on the grounds of BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected in a decision dated 27 February 2017 (“Director’s Further Decision”);

e.  On 9 March 2017 the Applicant petitioned/appealed to the NRCPO, which in January 2018 issued a Notice of Hearing by post to the Applicant and sought to hold a hearing in relation to the Applicant’s non-refoulement claims on 22 March 2018, but which hearing was not attended by the Applicant; and

f.  The NRCPO followed the procedure in ss. 15(1) to (3) of Schedule 1A, Immigration Ordinance (CAP. 115) as it issued a letter by post to the Applicant pursuant to such and, as it had not received any written response within the time limit, determined the appeal/petition despite the Applicant’s absence at the hearing and handed down the NRCPO Decision on 5 October 2018, in which it found that the Applicant’s claim failed on the relevant applicable grounds and confirmed the Director’s Decision.

Legal Principles

6.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).

7.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).

8.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).

9.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

10.The application was filed more than 18 months after the NRCPO Decision.  I do not, in the circumstances, see that there is 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.

11.Dealing, firstly, with the merits of the substantive application, the Form 86 and the Affirmation do not identify any grounds of judicial review.  There are hence no allegations of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

12.Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.Having done so, I have come to the conclusion, having had regard in particular to the NRCPO Decision as a whole, but with particular regard to Paragraphs 13 to 25 and 34 to 53, as well as Re Hidayah [2018] HKCA 595 at §§8 and 15, MS v Torture Claims Appeal Board & Anor [2021] HKCA 979 at §§14[8], 24 to 26, and the obiter explanation of the ratio of those cases in Ndumbi Paul Mulumba [2023] HKCA 847 §§36-40[9], that that there are reasonably arguable grounds of judicial review in the context and circumstances of this case. The reasonably arguable grounds are that:

a.  The NRCPO erred in rejecting the Applicant’s case on the basis that as he did not attend the hearing and give oral evidence at such, it was unable to decide on the credibility of his case, and was hence unable to estimate what risks he faced if refouled, and hence whether he was entitled to non-refoulement relief; and

b.  The NRCPO erred as it failed to give sufficient reasons for its decision.  There was no elaboration on why the inability to determine the credibility of the Applicant’s assertions, and to estimate what risks he might face if refouled, and whether he was entitled to non-refoulement relief, should lead to a dismissal of the appeal/petition where the NRCPO had not made any finding and had made no adverse finding on the credibility of the applicant’s case, or on whether there was a basis for the relevant risks or his entitlement to non-refoulement relief.

14.However, the merits of the substantive application are only one consideration in deciding whether there is “good reason” for me to extend time and grant leave.

15.Secondly, there is lengthy undue delay in this case as the leave application was filed more than 18 months out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the Affirmation for the undue delay.

16.As a matter of context, the Applicant in his Notice of Appeal Petition gave an address in Tuen Mun[10] (“Tuen Mun Address”) which was the address to which the NRCPO’s refusal letter and NRCPO Decision were sent by post in October 2018, and which was also hence clearly the address to which the notification of hearing and the Schedule 1A letter (dated 22 March 2018) were sent.  At the hearing the Applicant claimed that he had moved away from the Tuen Mun Address in May 2018.  This was of course some time after his failure to both attend the scheduled hearing before the NRCPO in March 2018, and to reply to the Schedule 1A letter.  He admitted (as was patent from the fact that the refusal letter had been sent to the Tuen Mun Address) that he had not updated the  NRCPO with his new address after his move.  He also claimed, without any supporting evidence, that he had only learnt of the NRCPO Decision via either a phone call or a letter in 2020 from a party which he did not identify, and within a month which he could not remember.

17.I do not accept that I have been given a credibly valid or acceptable explanation for the lengthy and substantial delay in applying for leave.  As the Applicant failed to notify the NRCPO of his change in address, the consequence of any delay occasioned by the ineffectiveness of his address falls on his shoulders (s. 37ZA Immigration Ordinance (CAP. 115); Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).  Moreover, there is no documentary evidence in support of the Applicant’s extremely vague claim as to when he learnt of the NRCPO Decision. This is a situation where the Applicant should be treated as having slept on his rights, and should hence be barred from pursuing them in a judicial review (AW, supra, at §§27(3)(iii) citing Litton NJ in Po Fun Chan, supra, and 28(iii));

18.While there is prejudice to the Applicant if the application is not allowed to proceed, on the evidence this is clearly not a situation where the Applicant can be said to have acted sensibly and reasonably, and there is also clearly detriment to public administration and to the putative Respondent if the application is allowed to proceed (cf. AW, supra, at §27(1)).  Indeed, in this particular case, the prejudice to the Applicant is greatly lessened, and that to public administration and the putative Respondent is greatly increased (and substantially outweighs the prejudice to the Applicant), given that:

a.  The Applicant was sent by post and would have received the notice of hearing and the Schedule 1A letter at the Tuen Mun Address (ss. 37ZA, 37ZV(3) Immigration Ordinance (CAP. 115)), yet chose not to (or at the very least failed to) prosecute his appeal/petition as he did not appear before the NRCPO, and did not respond to the Schedule 1A letter; and

b.  There is also ample information in the public domain including from the Legislative Council[11] which establishes that there are still a large number of non-refoulement claims outstanding, even though it is over 10 years since the decision in AW, supra and over 4 years since the first instance decision in Hariatiningsih, supra.  

19.Lastly, there is no question of general public importance raised by the application which is likely to be resolved by the courts in any event.

Conclusion

20.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 24^th day of December 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