SHABBIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 109/2020

[2025] HKCFI 2880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 109 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
	consideration of the documents and oral 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 “Director of Immigration” be added as the putative interested party.

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 10 January 2020.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 30 September 2019.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 10 January 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 30 September 2019 (“the Board's 2^nd Decision”).

2.  In fact, the Board gave two decisions in respect of the applicant’s claim for non-refoulement protection. 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/HCAL000109_2020_files/1^st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000109_2020_files/2^nd_Board's_Decision.pdf

3.  The Board’s 1^st Decision was dealing with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 February 2015 (“the Director’s 1^st Decision”). The Board’s 2^nd Decision was dealing with the applicant’s appeal/petition against the Director’s decision dated 1 June 2017 (“the Director’s 2^nd Decision”).

4.  In the Director’s 1^st Decision, the Director assessed the applicant’s non-refoulement claim under the Unified Screening Mechanism (“the USM”) on all the applicable grounds including Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3]. However, BOR 2 Risk[4] was not assessed.

5.  The applicant appealed/petitioned against the Director’s 1^st Decision by filing a Notice of Appeal/Petition on 28 April 2016.

6.  By the Board’s 1^st Decision, the Board dismissed the applicant’s appeal/petition on the ground that the Notice of Appeal/Petition was filed out of time and there was inordinate delay in the filing. However, the Board did not consider the merits of the applicant’s non-refoulement claim.

7.  In the Director’s 2^nd Decision, the Director reviewed the applicant’s non-refoulement claim and in the absence of additional information, the Director considered that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated, including BOR 2 Risk.

8.  The applicant appealed/petitioned against the Director’s 2^nd Decision by filing a Notice of Appeal/Petition on 12 June 2017, which was not out of time.

9.  However, in the Board’s 2^nd Decision, the Board found that the applicant had nothing to petition or appeal about since he did not supply any additional facts or information concerning his BOR 2 Risk and the appeal only concerned BOR 2 Risk. The Board also found that what the applicant had stated about his life being in danger had been dealt with and adjudicated under USM 3561 and was res judicata. Thus, the Board dismissed the applicant’s appeal/petition against the Director’s 2^nd Decision.

10.  The Leave Application is only concerning the Board’s 2^nd Decision.

Amendments

11.  In Form 86, the applicant named both the Board and the Director as the putative respondents but did not name any putative interested party. However, only the Board should be the putative respondent and the Director should be the putative interested party.

12.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

Late application

13.  Form 86 was filed on 10 January 2020, which was three months and 11 days after the Board’s 2^nd Decision (made on 30 September 2019). By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s 2^nd Decision was made. The applicant was hence late for 11 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

14.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

15.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application on paper.

16.  At the oral hearing before this court on 6 May 2025, the applicant explained that he was only reminded by his friend to make the Leave Application. He was unaware of the time bar for making the Leave Application.

17.  Ignorance of the law is not generally an excuse for delay. Nevertheless, since the delay in the present case was a short one, this court will not take issue on the reason for the delay, but concentrates on the merits of the intended judicial review. As discussed below, this court is of the view that there are merits in the Leave Application. Hence, this court will grant an extension of time to the applicant to file the Leave Application out of time on 10 January 2020.

The applicant’s case

18.  The applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared his maternal uncle would harm or even kill him because of a land dispute.

19.  In both the Board’s 1^st Decision and the Board’s 2^nd Decision, there was no details of the applicant’s case as the Board did not consider the merits of the applicant’s non-refoulement claim at all.

Oral hearing

20.  The applicant requested for an oral hearing of the Leave Application and his case was fixed for hearing on 21 March 2025. However, the applicant was absent at the hearing on 21 March 2025.

21.  The applicant then wrote a letter dated 3 April 2025 to this court to request for another hearing as he could not attend the hearing on 21 March 2025. This court acceded to his request and fixed another hearing on 6 May 2025.

22.  At the hearing on 6 May 2025, apart from explaining the reasons for his late application, the applicant mentioned to this court some details of his danger in his home country. He added that he has been in Hong Kong for 15 years and is now married with 2 children. He is aware that he cannot remain in Hong Kong permanently and he will go to other places, but not Pakistan, as it is still dangerous for him to return there.

Grounds for judicial review

23.  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).

24.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 10 January 2020. What he said at the oral hearing before this court cannot amount to any valid ground for judicial review either.

Discussion

25.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

26.  Thus, this court cannot re-assess the applicant’s case regarding his alleged danger in his home country. However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

27.  The Board did not hold an oral hearing in assessing the appeal by the applicant. In the Board’s 2^nd Decision, the Board found that the Director’s 2^nd Decision only dealt with additional facts or information concerning BOR 2 Risk. As the applicant did not supply any additional facts, the Board was of the view that there was nothing to appeal about. Moreover, the Board found that the applicant’s claim about his life being in danger had been dealt with and adjudicated under USM 3561 and was res judicata. These were the reasons given by the Board in dismissing the applicant’s appeal/petition. The Board did not re-assess the applicant’s claim and did not consider the merits of the applicant’s claim at all.

28.  The Board was clearly wrong in law in its reasoning for dismissing the appeal/petition. The appeal procedure from the Director to the Board, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, “provided an opportunity for a complete review of the decision by the primary decision maker and that review is in the nature of a rehearing in the sense that it is not dependent an appellate error being demonstrated. The appeal tribunal itself examines and considers all the materials and reaches its own view on the merits of the claim. In doing so it will have regard to any additional materials the claimant may wish to place before it.”

29.  Thus, it was utterly incorrect for the Board to rule that there was nothing to appeal about. The Board should have reviewed the applicant’s claim by way of a rehearing and received additional materials from the applicant, if any.

30.  In his Notice of Appeal/Petition dated 12 June 2017, the applicant stated that:-

“Previously I also appealed but it was failed before even heard because I appealed late because I was in jail. The real thing is I don’t want to go back there my life is in danger I told this before if you want any evidence so I can ask my paternal cousin to send for this you need to give me some time and take mercy on me and hear my case.”

31.  The Board was aware of the above statement as it was quoted verbatim in the Board’s 2^nd Decision. It should be clear to the Board that the applicant was in jail but could provide evidence with the help of his paternal cousin. It should also be very clear to the Board that the applicant was asking for a hearing.

32.  Nevertheless, the Board proceeded to determine the appeal/petition without an oral hearing and did not afford the applicant an opportunity to present new evidence. There was clearly procedural unfairness to the applicant.

33.  Although there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

34.  The Board, in deciding not to have an oral hearing, had clearly failed to consider the circumstances that the applicant was in jail but could provide new evidence through his paternal cousin and the applicant had expressly requested for a hearing. It is the view of this court that the Board did not afford the applicant high standards of fairness in determining the appeal/petition without an oral hearing.

35.  As held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, high standards of fairness are demanded in the making of a determination of non-refoulement claim as the life and limb of the applicant are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

36.  It is also wrong in law for the Board to find that there was res judicata when the applicant’s claim that his life was in danger had been adjudicated under USM 3561.

37.  First of all, it is not clear whether the Board in quoting USM 3561 was referring to the Director’s 1^st Decision or the Board’s 1^st Decision. However, in either case, there was no adjudication of the applicant’s claim regarding his BOR 2 Risk.

38.  In fact, in the Board’s 1^st Decision, the Board simply dismissed the appeal/petition on the ground that the Notice of Appeal/Petition was filed out of time, which was also wrong in law as the Board had to consider the merits of the applicant’s claims but failed to do so.

39.  The Board was required to apply subsections (2) and (3) of Section 37ZT of the Immigration Ordinance, Cap 115 (as then stipulated before their amendments in 2021) in its determination on whether to allow the applicant’s application for late filing of the Notice of Appeal/Petition. As held by the Court of Appeal, “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

40.  Thus, the Board’s 1^st Decision could in fact be quashed for failing to consider the merits of the applicant’s appeal/petition.

41.  In any event, since the Board’s 1^st Decision was not a decision on the merits, there could be no res judicata arising from it, even assuming that the Board was a judicial body (see Re Kamaljeet Singh [2023] HKCA 1195).

42.  There could be no res judicata arising from the Director’s 1^st Decision either as the Director’s determination was not an adjudication. It was just a decision made by an administrative decision-maker, not a judicial body (see Re Kamaljeet Singh, supra).

43.  It was therefore wrong in law for the Board to rely on the principle of res judicata in the Board’s 2^nd Decision.

44.  Having rigorously examined the Board’s 2^nd Decision and the evidence with anxious scrutiny, this court finds that the Leave Application is reasonably arguable.

45.  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 enjoyed 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

46.  For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 10 January 2020, and 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