Ahmed Shakeel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2804/2019

[2025] HKCFI 2225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2804 of 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1. The Form 86 is amended on the court’s own motion.

2. The Leave Application be granted.

3. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Introduction

1.By prescribed Form 86 filed on 24 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 20 September 2019[1] (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 19 May 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.It should be mentioned that there is also a prior decision of the Director dated 10 April 2015 (“Director’s Prior Decision”), and a prior decision of the Board dated 10 August 2015 (“Board’s Prior Decision”), which dismissed the applicant’s appeal against the Director’s Prior Decision.  Although the Board’s Prior Decision will be discussed in this Form Call-1, it is not the subject matter of this Leave Application

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 April 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

4.In the Form 86, the applicant named the “petition team (Security Bureau)” as the proposed respondent and the Board as the interested party. The decision in respect of which relief is sought was stated to be a decision dated 20 September 2018.  As the Board should have been the proper respondent and the Director the interested party, and the date of the Board’s Decision should have been 20 September 2019, the Form 86 will be accordingly amended on its own motion.

Background

5.The background as taken from the two Decisions of the Director and the two Decisions of the Board referred to above can be briefly stated as follows.

6.The applicant is a national of Pakistan. He was arrested by police for illegal remaining on 18 October 2009 and was transferred to the Immigration Department on 19 October 2009. He claimed that he entered Hong Kong from mainland China on 18 October 2009 without permission.  On 20 October 2009, the applicant raised a non-refoulement claim. The basis of the claim was that he would be harmed or killed by his enemy, Toufeeq, who was an active PML (N) supporter, and by the members of the Pakistan Muslim League (N) (“PML (N)”) due the long-standing grudges they had against the applicant.

7.According to the applicant, his troubles arose from a dispute with his neighbour Toufeeq about the water supply in their village in Punjab.  In 2003, when Toufeeq tried to expand his house to occupy more land around the village well, the applicant had a fight with Toufeeq and was injured from the fight. The applicant’s attempt to file a complaint against Toufeeq with the Mangla Police Station was not successful.  This was because the police constable (Shaban) stationed at the police station knew Toufeeq and Shaban was the son of the local PML(N) leader (Maqooq). Not only had Shaban refused to accept the filing of the complaint, he threatened the applicant that he and his father should refrain from making any further complaints against Toufeeq or pursuing the matter further.

8.Physical altercations between the applicant and Toufeeq continued.  In 2008 after PML(N) won the election, Toufeeq, with the influence of and the support of the members of PML(N), tried to stop a road construction so that the construction could be arranged in such a way that would allow the road to pass through Toufeeq’s land.  The applicant got into another fight with him, in which the applicant was kicked and slapped on the face.  Toufeeq and his men went to the applicant’s home to threaten him and his family.  The applicant’s father became worried and sent him to Gujrat where he stayed with his mother’s relatives for about 15 to 20 days.  However, during his stay there he was threatened by a few men whom he believed to be from the PML(N).

9.The applicant then fled to Azad Kashmir, where he stayed with his in-laws for around one month. One day when he was with friends, he encountered Shaban and his fellow police officers.  They tried to take him but his friends managed to stop them.  Shaban threatened that if he saw the applicant again, he would not spare the applicant. Shaban further threatened that he would be able to locate him no matter where the applicant hid.  The applicant’s friends became worried about his safety and advised him to leave Pakistan.

10.In the Director’s Prior Decision, the Director considered the applicant’s non-refoulement claim made in 2009 under the grounds of risk of torture^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM^[5], and dismissed it.  The applicant’s appeal against the Prior Decision was dismissed by the Board’s Prior Decision.

11.On 19 January 2017, the Director invited the applicant to submit additional relevant facts in relation to his non-refoulement protection, including the BOR 2 risk^[6]. After the Director had considered the applicant’s written submissions stated in his letter, the Director dismissed the applicant’s claim in the Director’s Decision. Hence, the applicant’s appeal to the Board against the Director’s Decision.

12.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

The Board’s Prior Decision

13.The applicant’s notice of appeal against the Director’s Prior Decision was late by 21 days. Pursuant to s.37ZT(2)  of the Immigration Ordinance^[7], the Board was required, based on the information available to it, to decide the preliminary issue as to whether to allow the applicant’s late filing of the notice of appeal without a hearing. After the Board had considered the applicant’s brief explanation for the delay (that he had forgotten the date), and briefly discussed the merits of the applicant’s appeal, the Board  rejected the late filing of the appeal with the following reason:

“It was just a personal dispute with no serious injuries being inflicted and no government officials being involved and not a case of persecution. The Immigration Officer had carefully considered his case and analysed his claim under all applicable grounds. I agreed that the Immigration Officer had come to the right conclusion.”

Board’s Decision

14.The Board determined the applicant’s appeal without a hearing, and substantially relied on its findings in the Board’s Prior Decision in dismissing the applicant’s appeal against the Director’s Decision.  The Board found that the applicant’s 5 additional facts set out in his written submission to the Director earlier did not disclose any facts concerning BOR 2 risk. After having referred to those additional facts that the PML(N) members killed one of the applicant’s friends, that the local police had sided with PML(N)  and the applicant’s brother had gone missing, the Board found that the Board’s Prior Decision was binding, and that additional facts were either unrelated to his claim or speculation or had already been adjudicated up and was therefore res judicata.  The Board stated that the country of origin information (“COI”) about Pakistan being the most violent country did not show that the applicant had established a substantial ground for believing that he would be in danger of being subjected to torture, and in any event the state is not required to provide protection that would eliminate all risks. It therefore concluded that the applicant had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Pakistan. 

15.As a result, the Board dismissed the applicant’s appeal against the Director’s Decision.

Legal principles governing a late filing of notice of appeal to the Board under s.37ZT of the Immigration Ordinance[8]

16.Notwithstanding the amendments on 1 August 2021 to s. 37ZT(2), the case law interpreting them will still apply in this case.  In Re Khan Kamal Ahmed[9] and Re Qasim Ali[10] , the Court of Appeal held that under s 37ZT (2)(b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20].

Legal principles applicable to judicial review

17.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

18.The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant stated that it was very unfair for the Board to have rejected his appeal without an oral hearing, and that he never got a chance to properly explain his risk and his situation to the Board.

19.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that by the time he received a letter from the Director, the 14 days’ appeal period had already passed.  Since it appeared that the applicant was referring to his late appeal to the Board against the Director’s Prior Decision, this court therefore took the applicant through a brief chronology of all the Decisions of the Director and the Board. Notwithstanding this court’s effort to clarify matter with the applicant as to whether he had also intended to challenge the Board’s Prior Decision, the applicant simply could not give me any coherent response. All that he said was that his life is in danger should he be refouled, and that had he have given a chance to attend a hearing before the Board, he would have told the Board the previous fights and the danger that he faced.

20.In relation to the applicant’s late filing of the notice of appeal against the Director’s Prior Decision, the applicant only gave a very brief explanation for the late filing of the notice of appeal and did not provide any documentary evidence in support of the reasons as required by s. 37ZT.  According to the Court of Appeal decisions referred to above, the “any other relevant matters of fact within the knowledge of the Board” under s. 37ZT(2) requires the Board to “take the merits of the applicant’s case into account” apart from the explanation for the delay:See Re Khan Kamal Ahmed at [17]-[20].

21.In the Board’s Prior Decision, the Board rejected the applicant’s late notice of appeal after considering the merits of the appeal, albeit briefly. Nonetheless, the Board seems to have misapprehended and also failed to consider some of the relevant facts of the applicant’s claim as the facts the Board summarized contained a number of material inaccuracies and omissions.    

22.For example, in the Board’s Prior Decision at [7(iv)][11], the summary of facts  that state Shaban was the PML-N leader of that area is plainly materially inconsistent with the facts set out in Director’s Prior Decision (which quoted from the non-refoulement claim form).  In fact, the PML-N leader of that area was Maqsood, not Shaban. Importantly, the Board omitted to set out the threats Shaban made to the applicant.

23.When summarizing[12] the encounter the applicant had with Shaban when he was atAzad Kashmir, the Board omitted to materially state the threat Shaban and his fellow police officers made to the applicant (see [9] above).

24.The threats from Shaban and the other police officers are relevant to the issues of the three risks under consideration in the Board’s Prior Decision.

25.Plainly, the Board had at least considered persecution risk, and perhaps torture risk as well, as it was stated in the Board’s Prior Decision at [8] that “It was just a personal dispute with no serious injuries being inflicted and no government officials being involved and not a case of persecution.” However, there is no objective or unequivocal indication in the Board’s Prior Decision as to whether the Board separately and independently assessed any of the risks at all, be it BOR 3 risk, or torture risk and persecution risk as distinct from BOR 3 risk.

26.In the absence of any mention, or any objective or unequivocal indication in the Board’s Prior Decision as to whether the Board separately and independently assessed the three types of risks, it would not be apparent to an objective reader of the Board’s Prior Decision as to whether the Board had properly considered any of those three types of risks. This conclusion is fortified by the lack of any mention or discussion of state protection in the Board’s Prior Decision.

27.A high standard of fairness would have required the Board to assess the availability of state protection. However, no such discussion or finding has been made. Thus not only has the Board failed to mention the threats from Shaban and his fellow police officers, it has not discussed state protection at all.   It is only in the later Board’s Decision that the Board raised the issue of state protection. Nonetheless, it seems that it has erroneously stated that state protection has already been dealt with in the Board’s Prior Decision.

28.In light of the Board’s failure to consider all the relevant facts, and the Board’s failure to demonstrate that it had properly considered all the three risks, it seems the Board has failed to take into account “any other relevant matters of fact within the knowledge of the Board” under s. 37ZT(2) and pursuant to Re Khan Kamal Ahmed in coming to the conclusion in the Board’s Prior Decision.  Thus, it seems reasonably arguable that the Board’s Prior Decision is erroneous in law, unreasonable and procedurally unfair, and does not meet the requisite high standards of fairness.

29.As discussed above, the Board’s Decision is arrived at by substantially relying on the findings in the Board’s Prior Decision, and taking the view that the risk assessment was res judicata, the Board’s Decision is arguably likewise tainted.  The Court of Appeal’s observations and analysis in Re Kamaljeet Singh, [2023] HKCA 1195 at [28] would seem apposite here:

“28. As mentioned above, the Board dismissed the 2^nd Board Appeal on the ground that the matter was “res judicata and cannot be re-litigated”.  In our view, the 2^nd Board Decision was also problematic in several respects:

(1)   The 2^nd Board Decision relied on the 1^st Board Decision which, as explained above, was erroneous in law and vitiated by the failure to take into account relevant considerations and which was as such liable to be quashed.  The 2^nd Board Decision is therefore arguably likewise tainted.

(2)   In any event, the Board was wrong in law to regard the matter before it as res judicata.  First, the 1^st Director’s Decision was a decision by an administrative decision-maker, not by a judicial body.  The Director’s determination was not an adjudication such as to give rise to res judicata: see Spencer Bower & Handley, Res Judicata (5^th ed), §§2.01-2.02. … Thirdly, the issue in the 2^nd Board Appeal, namely, whether there was BOR 2 risk based on the matters advanced including the matters submitted by the applicant in his letter to the Director dated 2 February 2017 and in the notice of appeal to the Board for the 2^nd Board Appeal, was different from the questions before the Director and the Board in the first round, and was not therefore precluded by res judicata or issue estoppel from being independently assessed by the Board: Spencer Bower & Handley, §§7.03 & 8.05.”

30.For the reasons above, it seems at least reasonably arguable that the Board’s Decision and the Board’s Prior Decision are erroneous in law, unreasonable and procedurally unfair, and do not meet the requisite high standards of fairness.  Since the subject matter of the Leave Application only concerns the Board’s Decision, there is a realistic prospect of success in the intended judicial review, and leave should be granted to the applicant to apply for judicial review of the Board’s decision.

31.In light of the discussion above, and my conclusion that the Prior Board’s Decision is arguably tainted with public law errors, it would be highly undesirable for this court merely to grant leave in relation to the Board’s Decision without dealing with the Board’s Prior Decision. In the circumstances, whilst this court would grant leave to the Leave Application, this court would invite the Director to consider whether, in the circumstances as stated above, the Director will agree, before the inter partes hearing before the Court of First Instance, to confirm whether he will consent to quashing both of the Board’s Decisions.

32.Accordingly, I grant leave to the applicant to apply for judicial review, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Orders

33.The Form 86 be amended on the court’s own motion.

34.Leave be granted to the Leave Application.

35.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Dated the 6^th day June 2025

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