MIJAN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 796/2020

[2025] HKCFI 3928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 796 of 2020

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;

1.  The Applicant’s Form 86 be amended to name the NRCPO as the putative respondent; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 4 May 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision made on 23 April 2020.  From the copy of the decision attached to the supporting affirmation, it can be seen the decision was made by the Non-Refoulement Claims Petition Office (“NRCPO”) assessing his risks of ill-treatment other than torture risk under the Immigration Ordinance (“the NRCPO Decision”).  The Applicant’s torture claim was separately submitted before the NRCPO Decision, and it had been withdrawn.  Torture risk was not a risk assessed by the NRCPO in the NRCPO Decision.  A copy of the NRCPO Decision can be viewed by the following hyperlink^[1].

2.  Although the Applicant named the Torture Claims Appeal Board as the putative respondent in the Form 86, according to the papers it is clear the subject of his challenge was the NRCPO Decision.  On my own motion I amended the name of the putative respondent to NRCPO.   

3.  The NRCPO Decision was made pursuant to a petition from a decision of the Director of Immigration (“DI”) dated 28 September 2018.  DI has been named as a putative interested party.

4.  In the Applicant’s Form 86 and supporting affirmation, he has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the NRCPO in reaching the NRCPO Decision to make good his challenge, either in the Form 86 or the supporting affirmation. In the oral hearing before me, the Applicant said he has nothing to add to the papers he has filed.  

5.  The Applicant is a Bangladeshi national.  He claimed to be an ordinary member of a political party called Bangladesh Nationalist Party (“BNP”) but later left Bangladesh to stop his political activities from 2006 to 2011. The leader from BNP then requested the Applicant to rejoin the party but he refused.  His non-refoulement claim was based on an alleged risk of being harmed or killed by (i) the affiliates of a political party called Awami League (“AL”) for refusing to join the AL; and (ii) the Rapid Action Battalion because the Applicant’s enemies had filed a report against him.

6.  The NRCPO conducted a hearing to inquire into the facts of the Applicant’s claim.  The NRCPO stated the applicable legal principles in the NRCPO Decision and set out the Applicant’s case comprehensively.  The NRCPO found that the Applicant was not a witness of truth and he fabricated his claims in relation to his involvement in politics. The NRCPO also had concerns about the inconsistent evidence in relation to (i) the time of death of the Applicant’s close friend who was also a member of BNP; (ii) the reason the Applicant travelled overseas from 2006 to 2011; and (iii) the timeline of his stay in a place called Dunsha.  Not accepting the Applicant’s factual case, the NRCPO found the Applicant not actually being subjected to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he returns to his home country.  

7.  I have reviewed the NRCPO Decision vigorously.  In my judgment, the NRCPO Decision was based on sound factual findings and there was no apparent legal error in the decision.  The aforesaid findings were within the NRCPO’s discretion and supported by evidence.

8.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the decision-makers like the NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the NRCPO’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

9.  The leave application to apply for judicial review is thus dismissed.

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