PRAMANICK SUKUMAR v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1099/2020

[2025] HKCFI 4649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1099 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 June 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision made by the “Torture Claims Appeal Board (“TCAB”)/Adjudicator” dated 28 May 2020 (“the Adjudicator’s 2020 Decision”).  A copy of the Adjudicator’s 2020 Decision was attached to the Applicant’s supporting affirmation.  It can be seen from the copy that the Adjudicator’s 2020 Decision was actually made by Mr Ian Candy in his capacity as an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) to reject the Applicant’s petition against the decision of the Director of Immigration (“DI”)’s decision dated 9 May 2017 (“the DI’s 2017 Decision”). 

2.  The DI’s 2017 Decision focussed on the Applicant’s right under Article 2 of the Hong Kong Bill of Rights (“BOR2”) only.  The Adjudicator’s 2020 Decision thus also focussed on the Applicant’s BOR2 right only.  The Applicant’s other applicable grounds for non-refoulement claims (such as persecution and torture) were previously assessed in other decisions by (i) the DI in 2014 and (ii) the TCAB/NRCPO (also by Mr Candy as its member/adjudicator) in 2017 respectively.  They are not the subject of the present application.  On my own motion, I amend the Form 86 as per paragraph 1 of my order above.  The Applicant’s references to TCAB in his Form 86 and supporting affirmation should in these circumstances be understood as references to the NRCPO only.

3.  In the Form 86, the Applicant argued that the NRCPO was in breach of procedural fairness by unlawfully fettering its discretion, the Adjudicator’s 2020 Decision was irrational in the public law sense and the NRCPO had failed to meet the greater care and duty owed to a self-represented claimant.  He further complained about the lack of an opportunity to make submissions in an oral hearing and he had not been invited to provide written submission.  He ended by saying the NRCPO had relied on source of news which was not officially recognized or simply hearsay.

4.  The NRCPO indeed did not hold a hearing for the purpose of the petition against the DI’s 2017 Decision.  In the Adjudicator’s 2020 Decision, it was stated that the Applicant did not submit any further information specifically on BOR2.  The lack of further information on BOR2 was also stated in the DI’s 2017 Decision.  The NRCPO chose not holding an oral hearing to hear the Applicant’s BOR2 petition because of such circumstances.

5.  In the oral hearing before this Court, the Applicant again confirmed he had not submitted any additional fact or information specifically for BOR2 purpose.  As held by the Court of Appeal in Re Tamrakar Gita [2018] HKCA 632, an NRCPO adjudicator is entitled not to hold further hearing on just BOR2 risk if it had previously heard an applicant’s case on other applicable grounds of non-refoulement claim and the relevant applicant had no additional facts or new arguments to submit. An applicant would not be prejudiced by the lack of a new BOR2 hearing in such circumstances.  Applying the authority to this case, there is no merit in the Applicant’s complaint about the lack of a BOR2 hearing before the NRCPO.

6.  I do not see how the NRCPO had unlawfully fettered its discretion or acted irrationally in these circumstances.  I also do not see why the NRCPO must hold a hearing in these circumstances just because the Applicant did not have legal representative or what greater care/duty could have been exercised.  The Adjudicator’s 2020 Decision was based on the history of the Applicant’s claim and application of the correct procedure; it was not based on a reassessment of the country of origin’s condition.  The complaint about source of news is misconceived.  In any event it is also completely unparticularized.

7.  The leave application is accordingly 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