ULLAH MIR SAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 366/2020

[2025] HKCFI 4208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 366 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	cconsideration of the documents andoral submissions by the applicant in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.   Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 24 February 2020.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 10 February 2020 and filed on 10 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 24 February 2020 (“the Board’s 2^nd Decision”).  The applicant also confirmed at the oral hearing before this court on 17 July 2025 that the Board’s 2^nd Decision was the only decision he intended to challenge in the Leave Application.

2.  The Board had actually made two decisions in respect of the applicant’s non-refoulement claim.  In its decision dated 15 December 2016 (“the Board’s 1^st Decision”), the Board decided that the applicant’s claim for non-refoulemnt protection failed on all the applicable grounds which included Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 April 2015 (“the Director’s 1^st Decision”) and confirmed the same.

3.  The Director also rejected the applicant’s non-refoulement claim based on BOR 2 Risk[4] on 30 March 2017 (“the Director’s 2^nd Decision”).  On 2 May 2017, the applicant applied to the Board for late filing of his Notice of Appeal/Petition (“the Notice”) against the Director’s 2^nd Decision.  His application was refused by the Board’s 2^nd Decision, which is the only subject matter in the Leave Application.

4.  Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000366_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000366_2020_files/2nd_Board's_Decision.pdf

5.  As mentioned, the Board, by way of the Board’s 2^nd Decision, refused the applicant’s application for late filing of the Notice against the Director’s 2^nd Decision.

Amendments

6.  In Form 86, the applicant named “S.J. GEISER, MEMBER OF THE TORTURE CLAIMS APPEAL BOARD/ADJUDICATOR OF NON-REFOULEMENT CLAIMS PETITION OFFICE” as the proposed respondent, when only the Board should be so named.

7.  The applicant also named the Board as the putative interested party, when the Director should be named as such.

8.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

9.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenge on the Board’s 2^nd Decision, which refused his application for late filing of the Notice.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 17 July 2025.

11.  At the hearing, the applicant first confirmed that the Board’s 2^nd Decision was the only decision he sought to judicially review.

12.  This court noticed that the applicant signed on Form 86 before the issuance of the Board’s 2^nd Decision.  When asked to explain why this was the case, the applicant simply replied that he did not know.

13.  This court also invited the applicant to elaborate on his written submission which was annexed to his 2^nd supporting affirmation dated 14 April 2025, as the assertions contained therein were all very general.  However, the applicant failed to provide any particulars on the asserted grounds but merely said that he would rely on what was written in the written submission as his grounds for judicial review.  Apart from that, he had nothing further to say.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86.

16.  In his 1^st supporting affirmation dated 10 March 2020, the applicant merely stated that the Board’s 2^nd Decision was “Wednesbury unreasonable”.

17.  In the written submission that was annexed to the his 2^nd supporting affirmation, the applicant advanced several grounds for his intended judicial review, which are summarised as follows:-

(1)  He disagreed with the Director’s and the Board’s Decisions and did not think his case had been determined fairly;

(2)  He did not know how his case was determined;

(3)  He was not provided with proper legal and language assistance, and these were procedurally unfair;

(4)  The respondent is in breach of procedural fairness in that –

(A)  The respondent had unlawfully fettered his discretion by refusing his appeal on the ground that he did not satisfy the requirements;

(B)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(C)  The respondent’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or were a result of procedural errors or unfairness;

(D)  The respondent failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The quick disposal of non-refoulement cases by the authorities was unacceptable and determinate to the spirit of judicial system.

Discussion

18.  As aforementioned, the grounds asserted by the applicant are all very general and did not contain any particulars specific to his own case.

19.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

20.  Thus, the general assertions that the adjudicator or the Board was procedurally unfair, the decision was “Wednesbury unreasonable”, his case was not determined fairly, and the authorities disposed of non-refoulement claims quickly, etc, cannot help the applicant at all.

21.  With regards to his complain about the lack of legal assistance, the Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

22.  As to his assertion regarding his lack of language assistance and his limitations in terms of language capabilities, this court notes that all the documents filed by the applicant in relation to the Leave Application were written in English.  It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.  It is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). 

23.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s 2^ndDecision.

24.  However, the court will still scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

25.  The Board noted that the applicant filed the Notice on 2 May 2017 while the Director’s 2^nd Decision was dated 30 March 2017.  The Director also drew the applicant’s attention to his right to appeal his decision within 14 days from the date of his decision and enclosed in his letter the appropriate notice of appeal.

26.  The Board found the applicant’s simple statement in the Notice that he had not received the Director’s notice of decision as he did not receive it from his landlord who returned from China, and by that time it was too late, was no more than a bare assertion and did not amount to a reason that justified the Board in granting the application for late filing.

27.  The Board also found that there were no other relevant matters of fact within its knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the Notice.  The Board thus refused the applicant’s application.

28.  However, the Board did not consider the merits of the applicant’s appeal/petition at all.

29.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

30.  In other words, in failing to consider the merits of the applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b).  The Board had therefore committed an error of law in the Board’s 2^nd Decision.

31.  Having rigorously examined the Board’s 2^nd Decision and the evidence with anxious scrutiny, this court finds that the intended judicial review is reasonably arguable. 

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s 2^nd Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

33.  For reasons aforesaid, leave is granted for the applicant to apply for judicial review in respect of the Board’s 2^nd Decision.

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