Tamang Jyoti v. Torture Claims Appeal Board

CACV 601/2025, [2026] HKCA 1085

On Appeal From [2025] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 601 OF 2025

(ON APPEAL FROM HCAL NO 914 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong dated 29 July 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 31 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 May 2018 rejecting his non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Nepal. He claimed to have entered Hong Kong illegally on 21 April 2016. On 25 April 2016, he surrendered himself to the Immigration Department. On 28 April 2016, he lodged a non-refoulement claim on the basis that he would be harmed or killed by a person (“the Creditor”), whom he alleged to be a policeman in Nepal, because he had borrowed money from him but was unable to repay the debt.

3.By a Notice of Decision dated 16 May 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decision to the Board. On 31 January 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§34-36 of the Form CALL-1 dated 29 July 2025 (“the Decision”), as follows:

“[34] In assessing the applicant’s appeal, the Board arranged a hearing on 24 December 2018. However, the applicant failed to attend the hearing. The Board also received no response from the applicant for his written explanation for his failure to attend the hearing within the specified time limit. The Board was satisfied that all reasonable efforts were made to locate the applicant and inform him of the hearing, and it was reasonable to proceed to a decision without making any further efforts to contact him.

[35] As can be seen from the Board’s Decision, the Board identified a number of matters which required further details from the applicant. Without the applicant’s presence at the hearing, the Board could only determine the applicant’s case based on the evidence available to the Board. After considering the evidence available, the Board was not satisfied that the applicant borrowed money from his creditor; that he was threatened by his creditor or his associates; or that he genuinely feared harm in relation to this issue. The Board was also not satisfied that the applicant would suffer any harm covered by the applicable grounds under the USM upon his return to Nepal.

[36] Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.”

THE JUDGE’S DECISION

5.On 15 May 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. Four intended grounds of review (“JR Ground 1” to “JR Ground 4”) were raised in a document attached to the Form 86, as follows:

“1. The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country.

2. From the Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weight-age to those evidence and ruled otherwise. My decision was issued without hearing.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.” [sic]

6.The Judge heard the Applicant at an oral hearing. In view of the fact that the Director’s Decision had been overtaken by the Board’s Decision and thus was not reviewable in accordance with the principles established in Re Moshsin Ali [2018] HKCA 549, the Judge amended the Form 86 such that (i) the Board became the only Putative Respondent, and the Director became the Putative Interested Party, and (ii) only the Board’s Decision remained as the subject matter of the intended judicial review.

7.On 29 July 2025, the Judge gave the Decision refusing to grant leave to apply for judicial review. His reasons for refusing to grant leave were fully set out in the Decision. In summary, the Judge held that the Applicant had failed to give any satisfactory explanation for his substantial delay in making the application for leave, and his intended judicial review had no merit. Thus, the Judge refused to grant an extension of time to the Applicant to make the application for leave, and refused to grant leave to apply for judicial review.

THE APPEAL

8.In his Notice of Appeal dated 12 August 2025, the Applicant advanced a total of 20 grounds of appeal. The Notice of Appeal was signed and filed by the Applicant acting in person. They have been adopted by the Applicant’s counsel in his Skeleton Argument dated 13 January 2026, and relied upon by him at the hearing of the appeal.

DISCUSSION

9.The Applicant’s 20 grounds of appeal relate to a variety of matters, and may be considered under a number of sub-headings. Many of these grounds are advanced without regard to the facts or circumstances of the case. For reasons which we shall explain below, all 20 grounds of appeal are completely without merit.

Grounds 1, 2, 3, 4, 11, 13, 14 and 17 - delay and extension of time

10.Under Ground 1, the Applicant argues that the Judge failed to properly apply the principles in AW v Director of Immigration [2016] 2 HKC 393. In particular, the Applicant complains that there was no reasoned finding on the prejudice to the Board/Director or public administration, which it is said is a mandatory factor to be considered. This argument has no merit. The fact that the Judge did not make any specific finding, or rely on, any prejudice to the Board/Director or public administration arising from the Applicant’s delay in fact worked to the Applicant’s advantage. There is no mandatory requirement that a judge must consider the issue of prejudice to the putative respondent or the public administration when deciding whether to extend time to apply for leave to apply for judicial review. Where other relevant factors clearly point to a refusal to extend time, it is unnecessary for a judge to find any additional reasons (such as prejudice to the putative respondent) for refusing to grant leave.

11.The Applicant’s further complaint that the Judge’s approach was overly rigid given the nature of the rights engaged (non-refoulement/ill-treatment) where a flexible, justice-focused assessment is required, likewise has no merit. We do not see that the Judge adopted any overly rigid approach when considering the Applicant’s leave application. The Judge applied the well-established principles in AW v Director of Immigration in a fair and balanced manner, and found that the Applicant gave no satisfactory explanation for his substantial delay (as to which see §12 below), and his intended judicial review had no merit. On such finding, the dismissal of the Applicant’s application for leave was inevitable.

12.Under Ground 2, the Applicant argues that the Judge failed to consider that the time for making an application for leave to apply for judicial review should start to run from the time when an applicant knew or ought reasonably to have known of the relevant decision, instead of from the date of the decision. The Applicant also complains that the Judge faulted him for not making the leave application within 3 months of the date of the Board’s Decision (31 January 2019) while accepting that he only learned of it in February/March 2019, and there was no analysis as to “why, for a lay litigant, a short extension within that early window was not just”. There is nothing in this ground:

(1)  Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) provides that 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”. The relevant date would normally be the date of the decision sought to be challenged, not the date on which the applicant first came to know of the decision, although the latter could, depending on the circumstances, be relevant when the court considers whether to grant an extension of time for making the leave application.

(2)  In the present case, the Board’s Decision was dated 31 January 2019. On his own case, the Applicant came to know about it in February/March 2019. Thus, even if, contrary to our views in (1) above, the time for making the leave application should commence from the time of the Applicant’s knowledge of the Board’s Decision, the application for leave ought to be have made by May/June 2019 at the latest. As a matter of fact, the leave application was not made until 15 May 2020. There was a very substantial delay of some 11 to 12 months.

(3)  The Judge did not accept the Applicant’s explanation for the delay to be satisfactory. That was a view open to the Judge.

(4)  A delay of 11 to 12 months cannot, on any view of the matter, be regarded as a short one, or required only a “short extension”.

(5)  In any event, the Judge found that the Applicant’s intended judicial review was not reasonably arguable, and had no realistic prospects of success. That being the findings, there was no injustice in refusing to grant an extension of time. It would be futile to grant an extension of time for the Applicant to apply for leave to apply for judicial review, only for the application to be refused on the merits.

13.Under Ground 3, the Applicant argues that the Judge failed to give proper weight to his status as a litigant in person, his financial constraint in paying the filing fee, his need to seek advice, and the practical disruption in early 2020 to accessing advice and the courts. He also argues that for judicial review claims engaging absolute rights, those factors are relevant to the interests of justice and favour a short extension, especially if the intended judicial reviews are arguable. We have already rejected the argument that the Applicant required only a “short extension”. We also note that the Judge held that the Applicant’s intended judicial review had no merits. As for the other factors mentioned by the Applicant, they were matters for the Judge’s consideration. The Judge was not impressed by the Applicant’s explanation that he needed to find an expert for advice and to raise money to pay the filing fee, taking the view that “[i]t was absolutely unreasonable for the applicant to wait for his friends to lend him money and his so-called expert to give him advice for over a year” (see §§14 and 15 of the Decision). The fact that the Applicant was a litigant in person, or there was some disruption to the court’s process in early 2020, is no excuse for the Applicant’s substantial delay in filing the application only in May 2020.

14.Under Ground 4, the Applicant argues that given his status as a litigant in person, the Judge should have invited a short, focused extension application, or “treated the [Applicant’s] explanations as such, identifying what evidence was needed and giving limited time to file it”. This ground adds nothing of substance to Ground 3. The Applicant had given his explanation for the delay. The Judge did not rule against him because he gave no explanation, but because his explanation was considered to be unsatisfactory. Giving time to the Applicant to file evidence would not have made any difference to the acceptability of the explanation given by the Applicant for his delay.

15.Under Ground 11, the Applicant argues that even if there was delay on his part in making the leave application and there were difficulties with his reasons for the delay, the Judge could have granted a short extension, directed a focused amendment of grounds to identify public law errors, and issued brief directions to file targeted evidence. The Applicant further contends that the outright refusal of leave without considering these proportionate alternatives was an error in case management discretion. There is nothing in these complaints. We have already dealt with the issue of delay and time extension above. Insofar as grounds of review are concerned, the Applicant had set out his grounds in a document attached to his Form 86. There was no suggestion that he wished to raise any additional or amended grounds of review, or file any additional evidence in support of those grounds. On the contrary, as noted by the Judge at §22 of the Decision, at the hearing, the Judge specifically asked the Applicant to elaborate on the four intended grounds of review, and the Applicant told the Judge that “he did not want to do so and had nothing to add”. The Applicant has not suggested that there was anything disclosed on the materials before the Judge to show that there could be, or might be, any other reasonably arguable grounds of review which was open to him. Insofar as the Applicant seeks to complain about the Judge’s “case management discretion”, there is simply no proper basis on which this Court could interfere with the Judge’s exercise of discretion.

16.Under Ground 13, the Applicant argues that the Judge’s decision gave primacy to the length of delay over justice when determining serious, potentially irreversible harm. It is also said that in non-refoulement matters, interests of justice favour hearing arguable claims even after delay where no real prejudice is shown. This complaint is based on a distortion of the Judge’s reasons for refusing to grant leave to apply for judicial review. The Judge did not give primacy to the issue of delay. He considered both delay (including the length of, and the Applicant’s explanation for, the delay) and the merits of the intended judicial review. Since the Applicant’s intended review had no merit, there was no injustice in refusing to extend time for the Applicant to make an unmeritorious application.

17.Under Ground 14, the Applicant complains that the Judge discounted the Applicant’s detention in 2017 as an explanation for his delay because the Board’s Decision was made in 2019. He contends that the Judge overlooked the “cumulative effects on stability, mental health, and ability to navigate complex procedures”, which were relevant to both issues of extension and fairness. This complaint is based on bare assertions without particulars. There was no allegation by the Applicant, and no evidence adduced, that he was suffering from any instability or mental health problems which affected his ability to deal with legal procedures as a result of his “detention” (or imprisonment) in Tong Fuk Correctional Institution[5] and later in Castle Peak Bay Immigration Centre (“CIC”) upon release from prison. Apparently, by November 2018, the Applicant had already been released from detention in CIC[6]. According to the Applicant, he became aware of the Board’s Decision in February/March 2019. His previous imprisonment/detention plainly could not stand as any reasonable explanation for his delay in filing a leave application. In any event, the Applicant’s explanation for the post February/March 2019 delay was that he needed to find an expert for advice and to raise money to pay the filing fee, an explanation rejected by the Judge as “absolutely unreasonable”.

18.Under Ground 17, the Applicant complains that the Judge rejected his explanation for the delay (non-receipt, seeking advice, and raising fees) as “absolutely unreasonable” without allowing or inviting him to provide corroboration (postal records, fee waiver inquiries, advice appointment records). It is said that such “truncated approach” is unfair in context. This complaint is invalid. What the Judge considered to be “absolutely unreasonable” was the Applicant’s explanation “to wait for his friends to lend him money and his so-called expert to give him advice for over a year”. The Judge’s view was not based on any lack of evidence, but on the acceptability of the explanation itself.

Ground 5 - use of template grounds by the Applicant

19.At §25 of the Decision, the Judge, after reciting the four intended grounds of review raised by the Applicant, observed that:

“The aforesaid grounds were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below”.

20.Under Ground 5, the Applicant complains that the Judge characterized JR Grounds 1 to 4 as a template “used by many applicants” and discounted them. He argues that whether grounds look standard is irrelevant; the question is whether, read fairly and in context, they disclose arguable public law error. This reliance on form over substance is an error of approach that risks unfairly lowering the arguability threshold.

21.This ground of appeal is based on a distortion of the Judge’s reasons for refusing to grant leave. The Judge did not rule against the Applicant because he had adopted “template” grounds of review used by many other non-refoulement claimants, a proposition which the Applicant has not disputed. On the contrary, the Judge made it clear that he would still deal with the grounds raised by the Applicant, and did so at §§26-41 of the Decision. There is no basis for any contention that the Judge relied on form over substance.

Grounds 6, 7, 8, 10, 12, 15, 16, 18 and 19 - merits

22.Under Ground 6, the Applicant argues that although the Judge stated that he had examined the evidence “with anxious scrutiny”, his reasoning did not demonstrate it:

(1)  There was no engagement with whether the Board directed itself to the correct burden and standard (real risk/reasonable degree of likelihood).

(2)  There was no analysis of whether the Board assessed state-agent risk (the Creditor was alleged to be a policeman) and state acquiescence.

(3)  There was no evaluation of relevant country of origin information (COI) on corruption, police abuse, debt-related violence, or effectiveness of state protection in Nepal.

The Applicant further argues that a bare conclusion that the Board was “not satisfied” is insufficient; anxious scrutiny demands reasoned engagement with the above materials.

23.These complaints of the Applicant are all without substance.

(1)  In respect of §22(1) above, there was no complaint raised by the Applicant, nor was there any basis to contend, that the Board failed to apply the correct burden and standard of proof (real risk/reasonable degree of likelihood). The point about burden and standard of proof was a non-point.

(2)  In respect of §22(2) and (3) above, the Board was not satisfied that the Applicant had borrowed money from the Creditor, or had been threatened by the Creditor or his associates, or genuinely feared harm in his home country in relation to the alleged debt. On such findings, the issues of (i) state-agent risk (or state acquiescence), and/or (ii) proper evaluation of COI, were simply irrelevant.

24.The Judge did not merely state that the Board was “not satisfied” with the above matters. The Judge explained, at §§35 and 36 of the Decision, why the Board was not so satisfied. In any event, the requirement to examine the Board’s decision and the evidence with anxious scrutiny does not mean that the Judge was required to give elaborate reasons when deciding whether to grant leave to apply for judicial review. In this regard, it is important to appreciate that the leave requirement in judicial review is intended to operate as a filtering process to weed out unmeritorious applications so as to prevent public authorities from being unduly vexed with unarguable challenges. The relevant test is simply whether the intended application is reasonably arguable with realistic prospects of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. There is no duty on the part of a judge determining a leave application to expressly deal with all the points or arguments raised by an applicant, or demonstrate that he has “engaged” with the materials before him regardless of the facts and circumstances of the case or the issues raised for determination. Nothing in Ubamaka[7] (at §116) or C & Ors[8] (at §45) relied upon by Mr Fournier suggests otherwise. To the extent that a judge decides to deal with any substantial or significant point raised by an applicant, he is under no duty to give detailed reasons. In many cases, only brief reasons (in a few sentences) would be sufficient for a decision that a point is not reasonably arguable.

25.Under Ground 7, the Applicant complains that the Judge failed to address material considerations (state-agent risk and state protection). As mentioned at §23(2) above, the issue of “state-agent risk and state protection” was a non-issue.

26.Under Ground 8, the Applicant complains that the Board’s adverse view on whether the alleged loan existed or threats occurred was accepted (by the Judge) at face value. He argues that where personal credibility is doubted, the decision-maker must still assess objective risk on COI and plausibility, but the Judge did not examine whether the Board undertook that independent COI-based risk assessment. This ground has no merit. Assessment of the evidence is a matter primarily within the province of the Board, not the court. There was no public law ground made out before the Judge that would justify a challenge to the Board’s rejection of the Applicant’s allegation that he had borrowed money from the Creditor and had been threatened by the Creditor or his associates in Nepal. On such findings, there was simply no risk of harm to the Applicant in Nepal, and no purpose in any assessment of COI.

27.Under Ground 10, the Applicant complains that the Judge appears to have conducted a merits determination rather than asking whether there was a reasonably arguable ground with a realistic prospect of success. The Applicant argues that the appropriate test is lenient where removal is at stake. This ground can be disposed of briefly. The Judge was required to consider whether the intended judicial review was reasonably arguable with realistic prospects of success in order to determine whether to grant leave in accordance with the principles established in Po Fun Chan. Such consideration necessarily entailed a preliminary examination of the merits of the intended judicial review, even though it was not necessary for the Judge to reach a final or firm view on the matter. There is no basis for the contention that “the appropriate test is lenient where removal is at stake”. The legal test for granting leave to apply for judicial review is the same whatever maybe the subject matter of the intended challenge. Non-refoulement claims are no exception.

28.Under Ground 12, the Applicant complains that the Judge rejected JR Grounds 2 to 4 because they referenced “the Director” rather than “the Board”, and argues that a fair reading shows that they complained about failure to consider state acquiescence, COI and fairness. Those complaints were equally directed at the Board’s appellate decision. Dismissing them on a naming technically is an error of approach, especially after the court itself regularized the names of the partes. This ground of appeal has no merit. It was a matter for the Applicant to formulate his intended grounds of judicial review, not for the Judge to re-formulate them for his benefit. In any event, the complaint about the Board’s failure to consider state acquiescence and COI is misplaced for the reasons mentioned at §26 above (under Ground 8).

29.Under Ground 15, the Applicant argues that the Judge’s reasoning does not demonstrate consideration that the articles protecting life and freedom from torture/cruel treatment are absolute, and such consideration should have informed both the anxious scrutiny applied and the flexibility on extension. This argument is wholly academic in view of the Board’s rejection of the Applicant’s allegation that he had borrowed money from the Creditor, or faced any risk of harm in his home country.

30.Under Ground 16, the Applicant complains that the Decision references a hyperlink to the Board’s Decision but does not meaningfully analyse its reasons. The Applicant says that if the Board’s Decision was not properly before the court, reliance on it is problematic; if it was, the lack of engagement with its reasoning is an error. Like other grounds of appeal raised by the Applicant in his Notice of Appeal, this ground has no merit whatsoever. The suggestion that the Board’s Decision was not before the court or the Judge is completely without foundation. It is apparent from the Decision itself that the Board’s Decision was before and considered by the Judge[9]. The Judge’s reference to the Board’s Decision by a hyperlink is an entirely appropriate practice. It saved time and costs, and did not result in any prejudice or unfairness to the Applicant. As earlier mentioned, the leave process in judicial review should be a simple and summary one. There was no duty on the part of a judge dealing with a leave application to set out the facts of the case or the decision-maker’s reasons for its decision. The Judge referred to the material parts of the Board’s Decision, and explained why there was no valid ground to challenge the Board’s findings[10]. The Judge’s analysis of the Board’s decision is more than adequate, and cannot be faulted.

31.Under Ground 18, the Applicant complains that the Judge did not examine whether the Board assessed internal relocation within Nepal in light of alleged state-agent involvement and practical realities. The comments in relation to Ground 8 are equally applicable to this ground.

32.Under Ground 19, the Applicant complains that on service, fairness, merits, legal tests, and COI, the Decision offers conclusions without reasons demonstrating the path of reasoning. The Applicant says that reasons adequacy is itself a public law requirement, especially in situations where access to the supervisory jurisdiction of the court is refused. There is nothing in these bare assertions. The Judge’s reasons for his conclusion that the Applicant’s intended judicial review is not reasonably arguable with realistic prospects of success are detailed and clear, and more than adequate in the circumstances. We repeat our comments at §24 above concerning the purpose of the leave requirement in judicial review.

Ground 9 - procedural fairness

33.Under this ground, the Applicant complains that the Judge accepted that notice of the hearing was “duly served” and that the Board was “satisfied” reasonable efforts had been made to notify him of the hearing. The Judge did not however explain in the decision:

(1)  what steps were taken to notify;

(2)  whether language, address stability or vulnerability impeded attendance;

(3)  whether there was any follow-up or rescheduling opportunity; and

(4)  whether an adverse inference from non-attendance was proportionate in a protection claim.

The Applicant argues that in a high-stake, absolute-rights context, more was required to satisfy procedural fairness.

34.This ground of appeal is raised without any regard to the fact that even up to now, (i) the Applicant has not disputed that he had received notice of the hearing before the Board, or (ii) if the Applicant did not receive the notice of hearing, he has not provided any plausible explanation as to why a notice of hearing sent to his last known address by post on 5 November 2018 and a further notice of the Board’s intention to determine the appeal in his absence also sent to his last known address by post on 24 December 2018 were not received by him, and various telephone calls made to his last known telephone number to advise him of the hearing were not successful[11]. He has not alleged, or produced any evidence, that he was somehow impeded from attending the hearing. He has also not explained what additional information or evidence could usefully have been produced by him had he attended the appeal hearing. It was open to the Judge to accept the Board’s view that “all reasonable efforts were made to locate him and inform him of the hearing”[12]. We do not see that it was necessary for the Judge to address the matters mentioned at §33(1), (2) and (3) above[13] in the Decision. In relation to §33(4) above, the Board did not draw any adverse inference against the Applicant from his non-attendance. Instead, the Board determined the appeal on the basis of the evidence and materials before it. This approach of the Board cannot be faulted. We are satisfied that there has not been any breach of procedural fairness in the manner in which the Board dealt with the Applicant’s appeal.

Ground 20 - general

35.Ground 20 complains about “cumulative unfairness” arising from the complaints in Grounds 1 to 19. Having rejected those earlier grounds, Ground 20 cannot stand on its own, and does not require further consideration.

DISPOSITION

36.The Applicant’s appeal is dismissed. In view of the fact that both the Putative Respondent and the Putative Interested Party have not taken any active step in the appeal and have been excused from attending the hearing of the appeal, we make no order as to the costs of the appeal.

Mr Knut Fournier, instructed by Mohnani & Associates, for the Applicant

The Putative Respondent and the Putative Interested Party, absent