MD SUMON v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 631/2020

[2025] HKCFI 3929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 631 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 the NRCPO Decision as the decision sought to be reviewed; 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 an adjudicator of the Torture Claims Appeal Board (“TCAB”) made on 13 March 2020.  According to information obtained by the Court, the Applicant’s non‑refoulement claim was assessed in a decision made by an adjudicator of the Non‑Refoulememt Claims Petition Office (“NRCPO”) on 20 March 2020 (“the NRCPO Decision”); his torture claim was previously assessed by the TCAB in 2013 before the unified screening mechanism (“USM”) came into place.  On my own motion, I amended the Applicant’s Form 86 to name the NRCPO as the putative respondent and the NRCPO Decision as the decision sought to be reviewed.  The Director of Immigration (“DI”), who decided the Applicant’s claim (other than torture risk) under USM on 21 September 2018, has been correctly named by the Applicant as a putative interested party.  A copy of the NRCPO Decision can be viewed by the following hyperlink[1].

2.  The Applicant is a Bangladeshi national.  He claimed to be a supporter of a political party of abbreviation “AL”.  His non-refoulement claim was based on an alleged risk of being harmed or killed by a money lender who was said to be the general secretary of a political party of abbreviation “BNP”. 

3.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application.  First, he said the NRCPO’s hearing of his claim was unfair because he did not have sufficient time to consider the documents in the hearing bundle (“Hearing Bundle Ground”).  Secondly, he complained that he was not provided with legal representation or assistance for the filing of the petition to the NRCPO and at the NRCPO hearing (“Legal Assistance Ground”).  Thirdly, he alleged that the NRCPO had failed to provide language assistance to him (“Language Assistance Ground”).  Fourthly, he said the NRCPO had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay, and some of which was fairly outdated (“COI Ground”).  

4.  In the oral hearing before this Court, the Applicant stated that he did not want to say anything.  I tried to enquire with him for more particulars of the above grounds stated in his affirmation, which all went to the procedural unfairness of the NRCPO proceedings.  When I asked him whether he maintained that the NRCPO was unfair to him, he said “No, I do not want to say that now”.  He also confirmed he no longer wished to pursue the Hearing Bundle Ground.  

5.  On the Legal Assistance Ground, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel 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).  The real question is whether the Applicant was prejudiced.  

6.  The Applicant was unable to point out what prejudice he had suffered as a result of the lack of legal representation. Given the Applicant had the benefit of legal representation in the tier-one process handled by the DI, including the submission of non-refoulement claim form and attending the screening interview, I do not see the ground being made out in the absence of any specific prejudice.  

7.  As to the Language Assistance Ground, I have also independently reviewed the NRCPO Decision and the first-tier decision made by the DI.  The availability of language assistance was obvious, and there was no suggestion that the NRCPO did not understand the bases of the Applicant’s claim.  Moreover, the Applicant was able to file a notice of appeal/petition written in English to commence the NRCPO process.  In my judgment, natural justice, even on the heightened standard for non-refoulement claim handling, does not require the decision-maker to translate every written document to a claimant’s primary language.  

8.  As to the COI ground, the Applicant did not provide any particulars what items of COI having been considered was problematic.  In any event, according to the NRCPO Decision, the NRCPO apparently did not place any significant weight on the COI of Bangladesh because it did not factually accept the bases of the Applicant’s non-refoulement claim, and found that the Applicant had failed to establish any real risk of ill-treatment, torture, persecution or violation of fundamental rights if he was to return to his home country.  In such circumstances, there is no prospect that the COI Ground would succeed. After all, assessment of evidence, COI included, falls primarily within the decision-making power of the NRCPO/DI.  Short of any illegality, irrationality or procedural unfairness in the handling of COI, the Court will not intervene into what COI the NRCPO/DI had considered and how much weight was given to it. 

9.  I have reviewed the NRCPO Decision vigorously.  In my judgment, the NRCPO Decision was supported by sound factual findings, and the TCAB had conducted an anxious scrutiny of the claim.  The NRCPO also correctly identified the issues and observed a high standard of fairness.  I am unable to detect any error on the NRCPO’s part and do not see any merits in his intended judicial review at all. 

10.  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/TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen their 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). 

11.  The leave application to apply for judicial review is thus dismissed for being made out of time and also for devoid of merits.  

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