Hussain Sardar v. Torture Claims Appeal Board

CACV 358/2026, [2026] HKCA 1136

On Appeal From [2026] HKCFI 1786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 358 OF 2026

(ON APPEAL FROM HCAL NO. 433 OF 2021)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 25 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 1 September 2020 of the Torture Claims Appeal Board (“the Board”).  By its decision, the Board dismissed the applicant’s appeal against the decision dated 9 May 2017 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim on the BOR 2 risk[2] ground.

Background

2.The applicant is a national of Pakistan born in 1989.  He was born in Tehsil and District Nowshers, Pakistan.  He is single and has one elder brother.  From 2008 to 2009, he worked in a grocery store owned by his brother.  On 11 November 2009, he left Pakistan and came to Hong Kong via Bangkok and Guangzhou.  On 21 November 2009, he was arrested by the police as a suspected illegal immigrant.  On 24 November 2009, he was refused permission to land in Hong Kong and lodged a non-refoulement claim on the same day.  On 18 December 2009, he was released on recognisance.  On 9 August 2010, he was convicted of immigration-related offences and was sentenced to 14 months’ imprisonment.  On 24 May 2011, a removal order was made against him.  He was released on recognisance on 9 June 2011.

3.The applicant made the non-refoulement claim on the basis that if he were to return to Pakistan, he would be harmed or killed by people from the Taliban as he had refused to join them since 2008.    

Decisions of the Director and the Board

4.The background of the applicant and the basis of his claim were set out in [5] and [6] of the Director’s decision dated 6 March 2015, where the Director had first rejected his claim based on the torture risk,[3] persecution risk[4] and BOR 3 risk[5] grounds.  The applicant appealed the decision to the Board.  An oral hearing took place on 21 January 2016.  The Board dismissed the appeal in a decision dated 9 March 2017 (“the Board’s 2017 Decision”).

5.Subsequently, by a letter dated 6 April 2017, the Director invited the applicant to submit additional materials including those relevant to the BOR 2 risk ground.  The applicant did not respond to the letter.  By a decision dated 9 May 2017, the Director rejected the applicant’s claim on the BOR 2 risk ground (“the Director’s BOR 2 Decision”).   

6.The applicant appealed the Director’s BOR 2 Decision to the Board.  The Board decided to proceed on the papers without a hearing.  By a decision dated 1 September 2020 which can be viewed in the hyperlink,[6] the Board dismissed the applicant’s appeal (“the Board’s BOR 2 Decision”).

7.In the Board’s BOR 2 Decision, the Board referred to its 2017 Decision and the background of the present applicant at [2] to [6] of the decision.  However, from [7] to [16] of its decision, the Board appeared to have recited the facts and claims of another non-refoulement applicant from India concerning a family land dispute which were not relevant to the present applicant’s claim.  Based on those (irrelevant) facts, the Board assessed that the applicant had failed to substantiate the BOR 2 risk ground and therefore dismissed his appeal.

8.By a Form 86 dated 26 March 2021, the applicant applied for leave to judicially review the Board’s BOR 2 Decision.  The application was late by more than three months, given that RHC Order 53 rule 4(1) provides that such application should be made promptly and in any event within three months from the date when grounds for the application first arose.  His ground for seeking relief was set out in a handwritten document enclosed in his supporting affirmation, which stated that:

“1. I have only one question about adjudicator decision. Adjudicator totally did not read or did not pay attention. Starting he told about my claim after 2 or 3 paragraph he told another boy claim. He cancel an Indian boy claim and gave to me.”

Application for leave for judicial review and the Judge’s Decision

9.The Judge heard the application on 26 February 2026 which was attended by the applicant.  In a Form CALL-1 dated 25 March 2026, the Judge dismissed the application.  Firstly, the Judge considered the delay substantial and the applicant’s explanation (that he was unaware of the late application) to be unsatisfactory.

10.As to the merits of the application, the Judge had invited the applicant at the hearing to clarify his written ground of review, to which the applicant replied that he did not know what was written in the document because someone else wrote it for him.  After the document was interpreted to the applicant, the applicant still did not understand the contents and decided not to rely on them.  The applicant then asked the Judge for an adjournment to prepare his grounds of judicial review, which was refused by the Judge.  The Judge was of the view that the application was already filed late and that the applicant could have made oral submissions at the hearing before him.  The Judge also refused to allow the applicant to produce a document the contents of which was the same as the grounds attached in his supporting affirmation, as cited above.  The applicant then indicated to the Judge that he would rely on the grounds as stated in the document and added that his life would be in danger if he returned to Pakistan.  

11.Eventually, the Judge considered the applicant’s stated ground of review and found it to be “clearly incomprehensible”.  The Judge also stated that the Board’s BOR 2 Decision did not reveal anything related to “an Indian boy” but was solely related to the applicant’s petition/appeal.  Thus, the Judge held that the contents in the document cannot be a valid ground for the intended judicial review and can simply be ignored.  The Judge held that in the absence of any errors of law, procedural unfairness or irrationality in the Board’s BOR 2 Decision, the intended judicial review had no prospect of success.  He therefore dismissed the application for being made out of time and for lack of merits.  The detailed reasons are set out in [22] to [33] of the Form CALL-1.

This appeal

12.By a Notice of Appeal filed on 8 April 2026, the applicant appeals the Judge’s decision to this Court.  His stated grounds of appeal were that he disagreed with the decisions of the court and the Board, and that the Board had relied on some web news which was not officially recognised, and that his claim was not determined fairly. 

13.As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We therefore determine the appeal on the basis of the available documents and materials.

Our reasons for decision

14.In determining an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will examine the decision of the Judge and will only reverse that decision if the judge has made errors of law or has failed to take into account relevant matters placed before the court, or that his decision is otherwise plainly wrong.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.In the present case, the application for leave to apply for judicial review was directed at the Board’s BOR 2 Decision which dismissed the applicant’s appeal against the Director’s BOR 2 Decision.  It is evident from [7] to [16] of the Board’s BOR 2 Decision that the Board had mistakenly applied the facts of another non-refoulement applicant’s claims (which concerned a family land dispute) to the present applicant’s claim.  The facts of the land dispute and the names of the antagonists were evidently not related to the applicant’s claim.  Importantly, it is apparent from [15] of the Board’s BOR 2 Decision that the person seeking non‑refoulement was someone from India, and not the present applicant who came from Pakistan.  Accordingly, the Board had proceeded on the wrong set of facts to conclude that the applicant had failed to substantiate his BOR 2 risk ground. 

16.Although the Board had correctly stated the personal background and immigration history of the applicant at [4] to [6] of the Board’s BOR 2 Decision, and was correct in noting that the applicant did not submit any additional evidence to the Director in support of the BOR 2 risk ground, there was effectively no assessment of the BOR 2 risk ground on the basis of the underlying facts which are applicable to the present applicant. 

17.We have considered whether the Board’s 2017 Decision on the other three applicable grounds (i.e. BOR 3 risk, persecution risk and the torture risk) would inevitably lead to the dismissal of the applicant’s claim under the BOR 2 risk in the absence of any additional information provided by the applicant pertaining specifically to the BOR 2 risk, and whether the issues under the BOR 2 risk are inseparable from those under the BOR 3 risk such that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”: see Re Kulwinder Kaur [2022] HKCA 48 at [59]; Re Sandhu Vinny [2023] HKCA 1261 at [29]-[30].  

18.However, we have come to the view that the Board’s error in the present case was fundamental in that the Board had not adjudicated or given any consideration to the merits of the applicant’s claim on a BOR 2 risk assessment, and that it had not evaluated all circumstances of the case in reaching its decision to dismiss the applicant’s appeal against the Director’s BOR 2 Decision.  The fact that the applicant did not submit any information to substantiate his BOR 2 risk ground does not disentitle him from a proper assessment as to whether the requirements for establishing the BOR 2 risk ground are met, both on his own facts and as a matter of law.

19.Unfortunately, the Board’s error was not identified in the court below when the applicant attempted to bring this to the attention of the Judge, arguing as part of his grounds of review that the Board erred in adjudicating “an Indian boy claim”.  Although the Judge sought to clarify the applicant’s ground of review at the hearing, the applicant was not able to articulate clearly to the Judge the Board’s error in failing to assess his claim based on his own facts on the BOR 2 risk ground.  As the Judge had only focused on the Board’s BOR 2 Decision (and not the Board’s 2017 Decision), he was under the erroneous view that the applicant’s claim concerned a family land dispute involving his paternal uncle and cousins ([14] of the Judge’s decision).  The Judge thus fell into the error in holding that the Board’s BOR 2 Decision was solely related to the applicant’s appeal ([22] of the Judge’s decision), when the factual basis and the Board’s BOR 2 risk assessment was evidently not related to the applicant’s claim.  

20.In our view, these are issues that have to be considered in considering the applicant’s intended application to judicially review the Board’s BOR 2 Decision.  We are further of the view that they are reasonably arguable issues.  As far as the applicant’s extension of time to apply for judicial review is concerned, we note that the applicant’s reason for the delay in making his judicial review application was not particularly cogent.  However, we consider that (1) the length of the delay is not excessively long, (2) there are merits in his intended application, (3) the prejudice to the putative respondent and to public administration is not significant.  In these circumstances, we grant an extension of time to the applicant to make his intended application and grant leave to the applicant to apply for judicial review of the Board’s BOR 2 Decision.  The Judge’s decision in refusing an extension of time and leave to apply for judicial review is set aside.  

Disposition

21.For the above reasons, we make the following order:

(1)     The appeal is allowed.

(2)     The Judge’s order is set aside.

(3)     Extension of time is granted the applicant to apply for judicial review of the Board’s decision dated 1 September 2020.

(4)     Leave is granted to the applicant to apply for judicial review of the Board’s decision dated 1 September 2020.

(5)     The applicant shall within 21 days from the handing down of this judgment file and serve an originating summons to apply for judicial review of the Board’s decision dated 1 September 2020.

The Applicant acted in person.

[1]    [2026] HKCFI 1786

[2]   This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3]    This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

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

[5]    This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.