Tanbir Alam v. Non-refoulement Claims Petition Office

HCAL 1314/2020

[2026] HKCFI 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1314 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 naming only the Director of Immigration as the Putative Interested Party; 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 26 June 2020 (“Form 86”), and a supporting affirmation also filed on 26 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision dated 28 June 2019 by an adjudicator of the Non-refoulement Claims Petition Office (“NRCPO”) (“NRCPO Decision”).

2.The Applicant sought an oral hearing of his application, attended that scheduled for 28 August 2025, and made some submissions in relation to the issue of delay.

3.I have amended the Form 86 to properly identify the putative Respondent.  I will use the abbreviations and definitions from the NRCPO Decision, and from the TCAB Decision (defined below) unless otherwise specified herein.

Background

4.The background to the Applicant’s claim and how it was determined is set out in a decision of the TCAB/NRCPO dated 7 April 2017 (“TCAB Decision”)[1], and in the NRCPO Decision[2], which contents I will not repeat.

Legal Principles

5.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).

6.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).

7.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).

8.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[3] (iii) the merits of the substantive application[4] (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

9.The application was filed over 11 months after the NRCPO Decision, and over 8 months out of time.

10.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.

11.Firstly, the Applicant has not identified or set out any grounds of judicial review in relation to the NRCPO Decision, whether in the Form 86 or in the Affirmation. There is hence no allegation of any 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 relation to such. Rather, the Applicant only says that he would like to re-open his torture claim (using the specific Reference of the NRCPO Decision) and asks the court to tell “TCAB” to re-open his case as “the problem which I have in my country is start again”.

12.Nevertheless, given the seriousness of the issues at hand, I have 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 as well as the allegations mentioned in the Affirmation.

13.It is clear from the NRCPO Decision that the NRCPO had considered the Applicant’s application dated 3 April 2019 to withdraw his petition against the director’s decision dated 9 May 2017 regarding BOR 2 Risk (“Director’s Further Decision”), and was satisfied that the Applicant’s application to withdraw was freely sought and he understood the consequences, with good reason for such, namely that he considered it safe for him to return to India. It hence directed that the petition be withdrawn, confirmed the Director’s Further Decision, and stated that the appeal/petition had been disposed of and finally determined and that no further action would be taken in respect of such.

14.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 NRCPO 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 NRCPO committed any public law error when it accepted the Applicant’s valid withdrawal, confirmed the Director’s Further Decision, and hence disposed of 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).

15.I also do not see that the Applicant’s bare and unsupported claim and/or his attendant request in the Affirmation (which was affirmed over 11 months after the NRCPO Decision) are relevant to the present application, given both the analysis and findings in the NRCPO Decision and the nature of judicial review proceedings.

16.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.

17.Secondly, there is also undue delay in relation to the application for leave. Yet 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. At the hearing the Applicant sought to blame the delay on his having required “time” (which length, and from what period, he did not specify) to find the appropriate file/documents and the place where he could lodge the application. I do not consider this to be an acceptable or credibly valid excuse for the substantial delay in this case.

18.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

19.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 29^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