HUSSAIN AMJAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 682/2020

[2025] HKCFI 4035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 682 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 by naming the Director of Immigration as the putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 17 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) made on 6 December 2019. According to a copy of the decision exhibited to the Applicant’s supporting affirmation, while the NRCPO did conduct a hearing of the Applicant’s case on 6 December 2019, the relevant decision was actually made by the NRCPO on 12 March 2020.

2.  In the oral hearing of this application, I explained the handling process of his non‑refoulement claim to the Applicant and tried to ascertain if he was actually seeking to review the decision made on 12 March 2020 or some other decision in the process. The Applicant answered he was challenging the one made on 12 March 2020. A copy of this decision, to be referred to “the NRCPO Decision”, can be viewed by the following hyperlink[1]. By reason of the Applicant’s position, this leave application was made within time under the Rules of the High Court.

3.  The NRCPO Decision was made pursuant to a petition from a decision of the Director of Immigration (“DI”) dated 10 May 2017 (“DI’s Decision”). The Applicant has not named the DI as a putative interested party. I amended the Form 86 on my own motion to name the DI as the putative interested party.

4.  The Applicant’s torture risk, risk under Article 3 of the Hong Kong Bill of Rights and persecution risk under the Refugees Convention had been assessed before the DI’s Decision was made. The DI’s Decision and the NRCPO Decision were only about assessment of the Applicant’s right under Article 2 of the Hong Kong Bill of Rights (“BOR2”). In view of the Applicant’s position of focusing on the NRCPO Decision, this Court will only look into the lawfulness of the BOR2 assessment of the Applicant’s case.

5.  The Applicant is a Pakistani national. He said he feared being harmed or killed by a person of abbreviated name “BS” because his cousin had a dispute with BS over the control of a bus terminus in 1996 and BS was a supporter of the Pakistan Muslim League-Q party (“PMLQ”) and a drug trafficker.

6.  According to the NRCPO Decision, the NRCPO conducted an oral hearing specifically for the purpose of the BOR2 assessment. In this hearing, the Applicant answered certain questions from the adjudicator and was invited to comment on certain updated country of origin information (“COI”). After considering those answers/comments, the NRCPO assessed that the Applicant was not subject to a real risk of ill-treatment from BS or PMLQ; it also found that the Applicant had a reasonable internal relocation alternative.

7.  In the supporting affirmation, the Applicant set out a few proposed grounds of judicial review, which I would assess in the following.

8.  First, the Applicant said the NRCPO adjudicator only used COI coming from online sources (such as Wikipedia) but not any “real investigation” to collect “real data”. The COI mentioned in the NRCPO Decision came from official or well-recognized sources such as United Kingdom’s Home Office, Refworld and Pakistan’s national bodies. It is trite that assessment of COI is a factual assessment within the administrative decision-maker’s province. I am unable to see any legal error or procedural fairness for the NRCPO to refer to online sources and what “real investigation” were mandated. This ground has no substance. In any event, the Applicant also indicated during oral hearing of this leave application that he did not want to further pursue this ground.

9.  Secondly, the Applicant complained about lack of legal assistance from the Duty Lawyer Service (“DLS”) and the Legal Aid Department in the proceedings. The matter must be looked at against the reality that the Applicant was previously assisted by the DLS in submitting his non-refoulement claim form to the DI, and the subject process on BOR2 was already the third round of assessment of the Applicant’s case on different applicable grounds. The Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor FB & Ors v Director of Immigration & Anor [2009] 2 HKLRD 346 required a non-refoulement claimant to have an absolute right to free legal representation at all stages of the proceedings (see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37). There has been no suggestion how the Applicant had been prejudiced and why legal assistance must be granted to him in the NRCPO’s BOR2 process. This second ground also has no substance.

10.  The Applicant then referred to corruption and political problems in Pakistan, but those are factual points within the NRCPO’s province but not grounds of judicial review. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the body determining an appeal/petition from the DI. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the factual findings below 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/petition (see Re Lakhwinder Singh [2018] HKCA 246).

11.  I have reviewed the NRCPO Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application 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