Jaswant Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 84/2021

[2026] HKCFI 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 84 of 2021

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) Vincent Lung:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 25 January 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 October 2020 (the “TCAB Decision”).  This decision dismissed the Applicant’s appeal against the decision of the Director of Immigration (“DOI”) dated 17 July 2019, which in turn refused the Applicant’s application to re-open his non-refoulement claim under section 37ZG(3) of the Immigration Ordinance.

2.I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and he attended the same.

Background

4.The Applicant is a national of India.  There are some twists in the underlying facts and procedural history.  They have been comprehensively set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

5.In brief terms, after making his non-refoulement claims in 2015, the Applicant were asked to attend a briefing session in 2018.  He failed to attend, and soon thereafter he failed to report on his recognizance.  He also missed another re-arranged briefing session.  Letters from the DOI were not responded to, and the DOI informed the Applicant that no action would be taken on his claim on 30 July 2018 [2-6].

6.While in detention, the Applicant sent a letter to the DOI dated 5 January 2019 seeking to re-open his non-refoulement claims.  This was acceded to on 17 January 2019 [7].  He also had the benefit of the duty lawyer service, whereby he was informed that he should return the relevant claim form (“NCF”) by 14 February 2019 [8].

7.The Applicant was released on recognizance on 12 February 2019, and there was an extension of time for the Applicant to file his NCF up to 28 February 2019.  On that extended deadline the duty lawyer service ceased to act for the Applicant.  The DOI asked the Applicant to contact the Department by 7 March 2019, which the Applicant failed to do so [9-12].

8.The Applicant went to the office of the Immigration Department on 14 March 2019 and confirmed in writing that he wished to continue with his claims.  He was again referred to the duty lawyer service and was required to return the completed NCF by 28 March 2019.  The duty lawyer service ceased to act for the Applicant on 19 March 2019.  The DOI then reminded the Applicant to still return the completed NCF by 28 March 2019 [13-15].

9.No completed NCF was returned by the Applicant by 28 March 2019, and there was no request for an extension of time.  The Applicant’s claims were treated as withdrawn on 29 March 2019 and he was so informed by the DOI on 2 April 2019.  The Applicant was also informed that if he wished to apply for re-opening of his claims, he should provide sufficient evidence in writing to satisfy the DOI that he had not able to return the completed NCF as required due to circumstances beyond his control [16].

10.The Applicant was arrested for criminal offences on 30 March 2019 and 9 April 2019. He was sentenced to 3 months’ imprisonment on 11 April 2019.  On 27 May 2019, undated written submissions were received from the Applicant requesting for a last chance by reason of his mother’s death.  The DOI again asked the Applicant to provide sufficient evidence in writing to satisfy the DOI that he had not able to return the completed NCF as required due to circumstances beyond his control.  The Applicant provided a written submission which was received on 13 June 2019 [17-20].

11.Upon consideration, the DOI was not satisfied that the Applicant had not able to return the completed NCF as required due to circumstances beyond his control [21-23]. 

Discussion

12.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

13.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

14.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

15.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  In his affirmation in support he merely stated that he was dissatisfied with the TCAB Decision because his life remained in danger.

16.I note that the TCAB properly took into account of the then-in-force section 37ZG of the Immigration Ordinance which sets out the relevant statutory regime in failing to file a completed NCF [24-25]. Properly applying that section, the true question for the TCAB was whether there was sufficient material to exercise a discretion under section 37ZG(3) to allow the claim to be re-opened after section 37ZG(1) is triggered.  The TCAB essentially adopted the reasoning of the DOI and held that it was justified to refuse the Applicant’s application to re-open his claim [26-29].  I can detect no error, unfairness or irrationality in the reasoning of the TCAB.  It is not for this Court to substitute my own opinion on that question: Re Esmiralde Naguimbing Ruz [2025] HKCA 399 at [21]-[22].

17.At the hearing the Applicant further informed me that he had a blood problem and wanted to stay in Hong Kong for treatment.  This however is irrelevant to the issues I need to deal with, namely the correctness (in the public law sense) of the TCAB Decision. 

18.I also gave the Applicant leave to file additional evidence to substantiate his claim (which, according to the Applicant, would show that he had a fight with his opponent in a police station in India in 2013 or 2014) by 15 November 2025, failing which I would decide the application on the existing documents.  No further evidence has been filed by the Application by that deadline.  In any case, such evidence cannot conceivably alter the result of this application as it has nothing to do with the correctness (in the public law sense) of the TCAB Decision.

19.This leave application is accordingly without merit and is dismissed.  I further note that the present leave application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made.  Given that I consider that the proposed judicial review is not reasonably arguable, I refuse to extend time for the Applicant (in any case no reasons were given for the lateness).

Dated the 7^th day of January 2026

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