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

HCAL 975/2022

[2026] HKCFI 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 975 of 2022

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) Bonnie Cheng:    

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party and naming the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition dated 19 November 2021 as the decision in respect of which relief is sought.

2.   Extension of time for application for leave to apply for judicial review be refused.

3.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 dated 21 September 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) which, as stated below, was dated 19 November 2021 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 21 May 2021.

2.The Applicant did not request an oral hearing.  I determined his Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A) (“RHC”).

3.The Form 86 misstated the date of the Board’s Decision and failed to name the Director as the putative interested party.  I therefore amend the Form 86 on my own motion to state the Board’s Decision dated 19 November 2021 as the decision in respect of which relief is sought and to name the Director as the putative interested party.

Background

4.The Applicant is a national of India.  His background and the basis of his application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.In short, the Applicant claimed to fear revenge by his paternal grandfather, whom he had injured in a fight over a farmland dispute involving his father and grandfather.  He also claimed to be in fear of false allegation from the police should he be returned to his country.

Leave Application Out of Time

6.Pursuant to O.53, r.4(1) of the RHC, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

7.Here, the Applicant should have made the Leave Application by 19 February 2022, i.e. within three months from the date when the Board’s Decision was made.  However, the Leave Application was only made on 21 September 2022 and hence out of time for just over seven months.

8.S.21K(6) of the High Court Ordinance (Cap 4) provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers 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.”

9.As the Court of Appeal explained in AW v Director of Immigration & Anor [2016] 2 HKC 393 at §§23-36, the following (non-exhaustive) factors are relevant to whether an applicant has a good reason to extend time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant (if time is not extended) and to the respondent and public administration (if a challenge is allowed to proceed out of time); and (5) questions of general public importance.  The court is to consider the matter flexibly, always with regard to the particular circumstances of each case.

10.A delay of over seven months in this case is significant.  The Applicant has neither applied to extend time, nor provided any explanation for the undue delay. 

11.I shall proceed to review the substantive merits of the Leave Application, being another relevant factor for consideration.

Discussion

12.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

13.The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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 Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

14.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

15.The Applicant’s Form 86 does not contain any ground of judicial review.  In his affirmation, he stated that his life was still in danger in India, described issues in his country, complained about the Immigration Department’s treatment of his case, and expressed his wish to stay in Hong Kong.  These are not proper grounds of judicial review in that the Applicant has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.  In any event, I have considered what was stated in the Applicant’s affirmation.

16.Furthermore, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board found the Applicant’s evidence unreliable and suffered from inconsistencies that were not credibly explained: §§87-100.  For example, the Applicant’s evidence in the interview before the Board was that he left his home village about 2 days after the fight. This was contradicted by his evidence in the Non-refoulment Claim Form (“NCF”) that 3 to 4 days after the fight, he went to his grandfather’s house to apologise and that 8 to 10 days after the fight, his grandfather went to his house to threaten him and his father: §§87, 90.  The Board also noted that, when asked why he did not mention in the NCF that his grandfather made a report to the police and the police were looking for him, the Applicant said maybe he just forgot: §88.

(2)   In any event, the Board considered the COI of India and was satisfied that reasonable state protection would be readily available to the Applicant: §106.  The Applicant claimed to fear that the police might bring false charges against him because his grandfather had a friend with connection to the police.  But the Board found no evidence that the grandfather’s friend (whose name the Applicant did not know) had any means or intention to influence the police to do anything against him: §95.  Nor was there evidence that the police would bring false charges against him: §103.

17.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

18.I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be dismissed for being out of time.

Dated the 27^th day of April 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