MOHAMMED IMRAN HOSSAIN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 715/2020

[2025] HKCFI 3932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 715 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 (a) name the NRCPO as putative respondent, and (b) to name the DI as putative interested party; and

2.  Extension of time for the application for leave to apply for Judicial Review of the decision of the NRCPO dated 3 January 2020 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 21 April 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision made on 3 January 2020.  According to a copy of the decision attached to his supporting affirmation, it was made by the Non-Refoulement Claims Petition Office (“NRCPO”) on 3 January 2020 (“the NRCPO Decision”) assessing his risk of ill-treatment under Article 2 of the Hong Kong Bill of Rights (“BOR2”).  Although the Applicant literally stated the decision being challenged was made by the Torture Claims Appeal Board (“TCAB”), from the documents attached to the Applicant’s affirmation and other documents obtained by the Court, it is clear that the 2020 decision sought to be challenged was made by the NRCPO, as his claim made on different applicable grounds had been previously decided.  A copy of the NRCPO Decision can be viewed by the following hyperlink[1].

2.  The NRCPO Decision was made pursuant to a petition from a decision of the Director of Immigration (“DI”) dated 17 January 2017.  The TCAB has been named as both the putative respondent and the putative interested party.  I amended the Form 86 on my own motion so that the NRCPO is named the putative respondent and the DI is named as the putative interested party. 

3.  The Applicant was late with the filing of this application to seek leave.  Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose, i.e., when the NRCPO Decision was made.  The last day of the 3-month period for the Applicant to file his Form 86 fell on 3 April 2020.  He was therefore 18 days late with this application.  In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393). 

4.  The Applicant did not make any application for extension of time and provided no explanation for the delay in both the Form 86 and the supporting affirmation.  The delay and the lack of explanation alone can justify my dismissal of this leave application.  Nevertheless, in view of the general principles regarding extension of time, I shall consider the merits of the Applicant’s leave application. 

5.  The Applicant is a Bangladeshi national.  His non-refoulement claim was based on an alleged risk of (i) being harmed or killed by a group of people who were related to the then ruling party called Awami League (“AL”) for potentially divulging information which might implicate the group in the murder of the Applicant’s close friend; and (ii) being tortured by the Bangladeshi police for information in relation to the same murder incident. 

6.  The Applicant has set out a few grounds on which relief is sought in the supporting affirmation of this leave application.  By a letter dated 10 July 2025, the Applicant sought to add more grounds.  The Applicant named the TCAB in these grounds, but as said I would consider those challenges in the light of the NRCPO’s conduct of the proceedings in its BOR2 assessment.  A summary of those grounds is as follows:

(a)   The NRCPO has failed to properly apply paragraph 2 of the United Nation’s Committee against Torture General Comment No. 2, which required State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) to “conduct sufficient due diligence” to ensure that its reforms and means of relief have been “effective”.  It was further said the NRCPO had merely focused on whether the means of relief had shown signs of positive improvement, on which the case Re JKF (unreported, CACV 103/2014, 25 November 2014) was quoted;  

(b)   The NRCPO has failed to conduct sufficient inquiry into the relevant country of origin conditions;  

(c)   The NRCPO has failed to give sufficient reasons for its assessment on the Applicant’s BOR2 risk;

(d)   The NRCPO has failed to take into account the psychological strain and threats to the Applicant personally and the threats to kill him directly;  

(e)   the NRCPO has failed to consider the Applicant’s still-existing fear of his enemies; and

(f)    the NRCPO has no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP. 

7.  In the oral hearing before this Court, the Applicant said he had nothing to supplement the grounds stated in his affirmation. 

8.  On ground (a), paragraph 2 of the aforesaid General Comment No. 2 is only a general statement of the State parties’ obligations under the Convention against Torture and CIDTP.  In other parts of the General Comment, there are references to the requirement for State parties to exercise “due diligence” to prevent, investigate, prosecute and punish non-State actors’ acts of torture and adopt effective measures to achieve this purpose.  However, the General Comment does not point to a specific legal approach which the NRCPO as a tribunal deciding the Applicant’s non-refoulement claim must observe. 

9.  As to the case of Re JKF cited, the Court of First Instance in that case held that even if ineffectiveness of the State machinery (of the country of original of a non-refoulement claimant) in preventing domestic violence were established, there would have been still no substantial ground for believing that the claimant would be in the danger of being subjected to torture.  The Court of Appeal saw room for reasonable argument whether this general statement of the Court of First Instance was correct, and granted leave to judicial review to allow the statement to be canvassed fully in a substantive hearing.  

10.  In my judgment, the aforesaid authorities on a State’s obligation to prevent and combat torture and/or CIDTP is irrelevant to the present case.  The NRCPO in this case found the likelihood that the group of people would carry out their threats to kill or harm the Applicant to be low; and that the risk of harm from the police was minimal.  Based on these finding, no real risk of violation of BOR2 was found to exist in the Applicant’s situation.  The NRCPO did not choose to focus on just positive improvement but ignore the “due diligence” requirement.  Ground (a) is simply inapplicable to the Applicant’s challenge against the NRCPO Decision.  

11.  On ground (b), the NRCPO did inquire into the country information about the Bangladeshi police and legal system when assessing whether the Applicant would be subject to any risks, e.g. the Country Policy and Information Notes Bangladesh 2018 issued by the UK Home Office.  The assessment on state protection was not problematic. 

12.  Grounds (c)-(f) can be dealt with together.  The NRCPO has assessed the Applicant’s BOR2 risk and fear, and sufficient reasons have been given.  In view of the evidence recorded by the NRCPO in the NRCPO Decision, lack of any BOR2 risk was certainly a factual finding open to the NRCPO.  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 claim decision-makers such as 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).  

13.  I have reviewed the NRCPO Decision vigorously.  In my judgment, the NRCPO Decision was supported by factual findings and the NRCPO had conducted an anxious scrutiny of the evidence.  I am unable to detect any error on the NRCPO’s part.  

14.  By reason of the lack of merits, I refused to grant an extension of time to the Applicant to apply for leave to commence judicial review.  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