KHAN IMRAN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 594/2020

[2025] HKCFI 4645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 594 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 NRCPO as the putative respondent, the NRCPO’s Decision as the decision sought to be reviewed and the DI 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 14 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of one Ms Janice Lam, said to be a member of the Torture Claims Appeal Board (“TCAB”) and an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”), which was dated 23 November 2018. The Applicant exhibited a copy of a letter from Ms Janice Lam dated 20 March 2020 to his supporting affirmation.  On the face of it, the letter was only a covering letter of a decision and Ms Janice Lam was only a member of NRCPO’s supporting staff but not the decision-maker.

2.  According to information obtained from the NRCPO Secretariat, the relevant decision should have been made by Mr Arthur Hong, an adjudicator of the NRCPO on 20 March 2020 (“the NRCPO’s Decision”).  The NRCPO’s decision only focussed on the Applicant’s risks of being persecuted under the 1951 Refugees Convention and violated his rights under Articles 2 and 3 of the Hong Kong Bill of Rights, as the Applicant’s torture risk had already been assessed in a previous process.  The date specified on the Applicant’s Form 86, 23 November 2018, was the date the Director of Immigration (“DI”) decided on the Applicant’s non-refoulement claim except torture risk under the unified screening mechanism (“DI’s Decision”).  The NRCPO’s Decision was made upon the Applicant’s appeal/petition against the DI’s Decision.

3.  In the oral hearing of this application, I explained the handling process of the Applicant’s non-refoulement claim to him and confirmed that he is seeking to challenge the NRCPO’s Decision.  A copy of the same 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.  On my own motion, the Form 86 is amended as per paragraph 1 of my order above.

4.  The Applicant is an Indian national.  He said he feared being harmed or killed by a creditor who advanced to him a loan he could not timely repay.  The NRCPO found the Applicant’s alleged fear to be entirely out of a private dispute.  Judging from the past treatment by the creditor on the Applicant, he was found to have only a very low future risk of harm should he return to India.  There was also available State protection. 

5.  In the Form 86 and supporting affirmation, the Applicant only said the decision sought to be challenged was Wednesbury unreasonable, but did not explain why.  I fail to see why the NRCPO’s Decision conclusion was outside a range of reasonable decisions the NRCPO could make.  The Applicant did not suggest any legal errors or procedural unfairness.  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 DI and 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).

6.  I have reviewed the NRCPO’s Decision vigorously. In my view, the NRCPO’s Decision was based on sound factual finding.  I could not detect any legal error or aspect of irrationality/procedural impropriety.  I 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