Public Law — Second chances: Res judicata, new facts and fair hearings
The Court of First Instance hands down decision on the correct approach to evaluating an administrative body’s invocation of the principle of res judicata in the course of its decision-making: NH v Torture Claims Appeal Board [2024] HKCFI 2483 (reported in [2024] 6 HKC 765).
The ruling granting the applicant leave to apply for judicial review also sets out practical guidance on procedurally fair handling of new materials, including untranslated foreign-language documents and the raising of subsequent incidents in the non-refoulement context.
Isabel Tam represented the successful applicant.
Facts
NH, a Bangladeshi national, entered Hong Kong and made a non-refoulement claim, claiming fear of harm based on his political affiliations in Bangladesh. His initial claim was rejected in 2014, and his administrative appeal was dismissed in 2016 (“Previous Rejection/Dismissal”). The Director of Immigration invited him to submit additional facts and documents relevant to his non-refoulement claim, including the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights (“BOR 2”). NH duly made further submissions together with untranslated documents in Bengali, but his claim was also rejected by the Director.
NH’s subsequent appeal/petition against the Director’s BOR 2 decision was dismissed in 2019 by the administrative decision-maker (“the Board”). Referring to the Previous Rejection/Dismissal, the Board stated inter alia that (1) the present claim “is res judicata”, (2) the submission of claimed new facts related purely to the general situation in Bangladesh rather than his particular claim, (3) his political dispute has been dealt with under the Previous Rejection/Dismissal, and (4) there were no issues which necessitated an oral hearing. NH mounted judicial review proceedings. DHCJ To granted leave to apply for judicial review.
New Decision, Same Applicant: Pitfalls of Procedural Fairness
Res Judicata and Duty of De Novo Assessments
The Court accepted that “res judicata” did not apply to NH’s BOR 2 non-refoulment claim and held that the Board ought not have used the term “res judicata”. The Court agreed with NH’s contention that decisions on non-refoulement claims, being administrative decisions by administrative bodies, are not decisions by a judicial body and as such do not give rise to res judicata. Furthermore, even if the Board were a judicial body, the principles of res judicata and/or issue estoppel are not applicable in the context of non-refoulement claim because of the requirement of the high standards of fairness.
The Court went on to hold, however, that beyond the use of the term “res judicata”, the question for the Court was whether the Board did in fact apply this principle in its decision-making process. The Board was required to make a de novo decision, meaning it had to consider the case afresh without being bound by previous decisions. The Court held that the Board had not ignored its duty to make a de novo decision, but whether it had adequately discharged that duty was a separate matter. The Court ultimately held that even if the Board had undertaken a de novo assessment, it had not adequately discharged its duty in adherence with the requirements of procedural fairness.
Handling of Untranslated Documents and New Events
The Court held that the Board violated the high standard of fairness and the duty of joint endeavour by dismissing the untranslated documents from the applicant without assessing their relevance, as well as failing to consider five incidents that occurred after NH’s departure from Bangladesh which reflected on the likelihood of harm.
Upon reviewing authorities on procedural fairness including Chandradipathiyalage Nilantha Indika v Torture Claims Appeal Board [2022] 4 HKC 173, as well as the law on the distinct and separate requirements of assessing BOR 2 risk as opposed to other non-refoulment risks, the Court emphasized the importance of properly evaluating evidence even if it is in a foreign language. The Court gave guidance as to steps for conducting minimal inquiries, including the holding an oral hearing to determine the documents’ significance to the claim and factoring in the possibility that information on general country situation could be objective evidence for testing credibility of a claim.
The Board also failed to consider five incidents that occurred after NH’s departure from Bangladesh. These incidents were crucial as they suggested ongoing threats from political adversaries. The evidence, if credible, could have strengthened the applicant’s claims that there is a real risk of his right to life being violated upon being refouled. The Court held that the Board had, without reasons, omitted to address these incidents, being findings of fact which had to be made but which the Court in a judicial review could not make on the Board’s behalf.
Brevity – a Virtue or a Flaw
The Board’s decision was found to be defective due to its brevity and lack of sufficient reasoning. It did not suffice for the Board to state simply that NH’s political dispute had been dealt with under the Previous Rejection/Dismissal. Not only was the BOR 2 risk distinct and separate from other non-refoulment risks considered under the Previous Rejection/Dismissal, but also there were now new documents and new incidents that had not been considered under the Previous Rejection/Dismissal. Even upon giving the Board’s decision a generous construction, the Court held that the decision did not adequately reflect a de novo assessment of the facts.
Conclusion
Where an administrative decision maker conducts a de novo assessment following the introduction of new materials, the high standard of fairness requires the decision-maker to assess the claim in light of those new materials without having its hands tied down by previous decisions regarding the same applicant.
More generally, this judicial decision clarifies the boundaries of res judicata within the administrative non-refoulement framework. It also gives guidance on the contours of administrative procedural fairness in evaluating evidence from an applicant who has been previously heard by the same decision-maker on other decisions.
Isabel Tam
“Isabel is strong in analysis and research.”
Legal 500 Asia-Pacific 2025: Administrative and Public Law – Leading Junior
Isabel is a Bar Scholar who graduated with a first-class LLB and with distinction in her LLM. She also has an MA in competition law with distinction in the examination component and was seconded to the Competition Commission.
Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on family law, commercial/regulatory matters and public law.
Recent highlights of Isabel’s experience include NF v R [2023] 5 HKLRD 58, a breakthrough for same-sex parents, granting a declaration of “parentage at common law” to a same-sex couple, and AA v BB [2021] 2 HKLRD 1225, which has been hailed as a landmark victory for the LGBTQ community, granting rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured rights for her including guardianship and joint custody.
Visit Isabel’s profile for more details.
This article was first published on 10 February 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.