SHAKIR SEIKH v. NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  The Applicant’s Form 86 be amended to name the putative respondent as the Non-Refoulement Claims Petition Office;

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

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

Observations for the Applicant:

1.  By a Form 86 filed on 10 September 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 24 October 2019 (“the Board’s Decision”).

2.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 12 October 2018.  From a reading of the Board’s Decision, the Applicant’s torture risk had long been separately assessed, and the Board only sat as the Non-Refoulement Claims Petition Office to assess other applicable grounds.  I amended the Form 86 on my own motion to correct the name of the putative respondent.

3.  The Applicant was absent from the oral hearing of this leave application.  On the authority of Re Abdus Salam [2019] HKCA 1091, I proceed to deal with the leave application based on the materials placed before me.

4.  The Form 86 was filed after the 3-month limitation period under the Rules of the High Court.  In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393)

5.  There is no explanation for the delay in the documents filed.  I can on this reason alone refuse to extend time and dismiss the application.  For completeness sake, I would briefly go into the merits of the intended application.

6.  The Applicant claimed that he would be harmed or killed by a creditor if he were to be returned to his home country India.  The Board conducted an oral hearing to consider the claim.  After a thorough assessment of the evidence produced by the Applicant, the Board came to the view that his claim was incredible, and the future risk of him being subject to ill-treatment was low. I have reviewed the Board’s Decision vigorously, but do not find it reasonably arguable that the Board had committed any error or procedural unfairness. 

7.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

8.  I refuse to extend time and the leave application is dismissed.

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