Mudassar Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3197/2019

[2025] HKCFI 3077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3197 of 2019

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

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review of the Board’s 2^nd Decision be refused.

Observations for the Applicant:

THE APPLICATION 

1.The Director of Immigration (“the Director”) had issued the following:

(1)  Notice of Decision dated 30 November 2015 (“the Director’s 1^st Decision”) dismissing the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk; and

(2)  Notice of Further Decision dated 20 July 2017 (“the Director’s 2^nd Decision”) dismissing the applicant’s claim on BOR 2 risk.

2.The Torture Claims Appeal Board (“the Board”) had issued Decision dated 7 April 2017 (“the Board’s 1^st Decision”) dismissing the applicant’s appeal against the Director’s 1^st Decision; and also the Decision dated 25 October 2019 (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the Director’s 2^nd Decision.

3.The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision. He did not apply for leave for judicial review of the Board’s 1^st Decision. However, since the Board’s 2^nd Decision relied upon the facts of the Board’s 1^st Decision, I shall take into consideration the Board’s 1^st Board as well in this application.

4.The applicant asked for a hearing. He appeared before the Court on 9 June 2025.

5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant                         

6.The applicant, aged 37, is a national of Pakistan. He was arrested by police on 14 January 2014 as an illegal immigrant and was transferred to the Immigration Department. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his paternal uncle because he and his father had a confrontation with him in a land dispute.

7.According to the applicant, there was a scuffle between his uncle and his father in a dispute over the farmland, which belonged to his father. His uncle had threatened to kill them. He was afraid and left Pakistan for Hong Kong.

8.Details of his claim are set out at paragraph 6 of the Director’s 1^st Decision.

The Director’s Decisions

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

11.The Director invited the applicant to submit additional materials in support of his claim on BOR 2 risk. The applicant submitted no further material. By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on BOR 2 risk because he failed to establish his right to life will be violated if he returns to Pakistan.

The Board’s Decisions

12.The applicant appealed the Director’s 1^st Decision to the Board. On 31 March 2016, the Board conducted an oral hearing for his appeal.

13.Having considered the evidence, the Board found that the applicant’s claim had no merit, especially when his father told him it was safe to return to Pakistan; yet, he chose to remain in Hong Kong. [35]  See hyperlink to Board’s 1^st Decision https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003197_2019_files/1st_Board's_Decision.pdf. The Board dismissed his appeal against the Director’s 1^st Decision. The applicant did not apply for judicial review of the Board’s 1^st Decision.

14.The applicant appealed the Director’s 2^nd Decision to the Board. The Board did not hold an oral hearing for this application. Having considered the materials and evidence before it, the Board dismissed his appeal for the reason that there was no additional material in support of this application and he had raised the same facts in support of his argument in the Board’s 1^st appeal, which had been dismissed by the Board. The Board, by the Board’s 2^nd Decision, therefore considered that this was an issue of res judicata.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003197_2019_files/2nd_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

15.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he accepted the Board’s 2^nd Decision.

19.In respect of the issue of res judicata as the Board held, the Court of Appeal in Re: Kamaljeet Singh [2023] HKCA 1195, Hon Chu VP and G Lam JA in court, 16 October 2023 held:

“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 Board’s Decision was also problematic in several respects:

(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.  …”

20.This error in law as held by the Court of Appeal is not the end of this matter because it does not change the fact that the applicant’s application has no merit. The applicant has accepted the Board’s 2^nd Decision before this Court.

21.The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. …upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

22.The applicant has no valid ground to challenge the Board’s findings.

23.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

Dated the 27^th day of August 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