Mohsin Raza Javed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3450/2019

[2025] HKCFI 5347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3450 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 be amended on the court’s own motion.

2.   Leave be granted to the applicant to apply for judicial review against the Board’s Decision dated 13 November 2019.

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 a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 21 November 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 13 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 October 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the ground based on BOR 2 risk^[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003450_2019_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board and the Immigration Department Director as the proposed respondents and did not name any interested party.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that, if refouled to Pakistan, he would be (i) harmed or killed by Malik Zada and his men due to a dispute arose from a car accident; and (ii) accused of a murder case by the police.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 8 August 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.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 no such grounds at all. In his supporting affirmation, the applicant stated that his life was still dangerous in Pakistan and he wanted to stay in Hong Kong.

7.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 requested to be allowed to read the court file as he had forgotten what documents that he had filed.  The court therefore briefly adjourned the hearing, and allowed the applicant to read the Form 86 and the supporting affirmation. The applicant stated that he did not require the interpreter to translate the documents to him.  After the applicant had finished reading the documents, the hearing was resumed.  At the resumed hearing, the applicant stated that the situation in Pakistan was not good, and still dangerous.  His opponent political party, the PMM, was still in power.  He required more time to work things out before he could return home.  This court noted that there was an earlier decision of the Board dated 23 November 2015 concerning the Board’s dismissal of the applicant’s appeal against an earlier decision of the Director, who had rejected the applicant’s claim on the grounds of risk of torture^[4], BOR 3 risk^[5] and persecution risk^[6] under the USM.^[7]  The court therefore asked the applicant whether he had applied for leave to judicial review the Board’s earlier decision.  The applicant stated that he had forgotten about the Board’ earlier decision, and had lost all the documents.  He would require more time before he could decide what he wanted to do with the Board’s earlier decision.  In light of what the applicant had stated, the Leave Application is only confined to the applicant’s intended challenge against the Board’s Decision.

8.As the Courts have repeatedly stated, 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.[8]  In the present case, the Board referred to the applicant’s submission sent to the Director pursuant to the invitation to the applicant to submit additional facts relevant to his non-refoulement claim on all applicable grounds including the ground under BOR 2 risk.  The Board stated that the applicant’s submission that he was an active worker of the Pakistan People’s Party and was involved in dispute with workers of opposite party PML-N were already dealt with in the Board’s earlier decision.  The Board found that the applicant’s assertion in support of the appeal that his life was still in danger in his home country was only a bare allegation.  The Board further stated that the applicant’s assertion was already dealt with in the Director’s earlier decision, and it therefore found that it was res judicata.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that the Board’s finding of “res judicata” that led to the dismissal of the applicant’s appeal seems reasonably arguable that the Board’s Decision is erroneous in law, unreasonable and procedurally unfair, and does not meet the requisite high standards of fairness.

10.The Court of Appeal’s observations and analysis in Re Kamaljeet Singh [2023] HKCA 1195 at [28] would seem apposite here as it was also concerned with two decision of the Board.  In Re Kamaljeet Singh, the Court of Appeal stated:

“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.”

11.In the present case, the Board had not determined the merits in it’s earlier decision in relation to the applicant’s appeal against the Director’s earlier decision due to the applicant’s delay in filing his notice of appeal.  The Board in its earlier decision simply rejected the applicant’s late notice of appeal without considering the merits.

12.Since there was not any determination of merits in relation to the applicant’s appeal concerning the Director’s earlier decision in rejecting the applicant’s claim based on the three risks stated in [10] above, the Board had never considered the said three risks.  As stated in Re Kamaljeet Singh at [28] (2), The Director’s earlier 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.  Further, in the present case, the question of whether there was BOR 2 risk was different from the questions in the Director’s earlier decision. The Court of Appeal held that it was not precluded by res judicata or issue estoppel from being independently assessed by the Board.

13.For the reasons above, it seems at least reasonably arguable that the Board’s Decision is erroneous in law, unreasonable and procedurally unfair, and does not meet the requisite high standards of fairness.  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.

14.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.

Order

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

16.Leave be granted to the applicant to apply for judicial review against the Board’s Decision dated 13 November 2019.

17.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 14^th day of November 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

[1] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).

[2] Re Zunartyah [2018] HKCA 14 at [23].

[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].

[4] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.

[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.

[6]  This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7]  This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection.  For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.

[8]  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.