SANTO v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1111/2020

[2025] HKCFI 5315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1111 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 5 June 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision on his non-refoulement claim dated 22 May 2020.  The Applicant said it was a decision by an adjudicator of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”).  However, according to a copy of the decision exhibited to his supporting affirmation, the decision was in fact made by an adjudicator of the NRCPO only.  The TCAB decided the Applicant’s appeal on his torture risk in 2014 before the unified screening mechanism came into place.  The decision dated 22 May 2020 (“the NRCPO Decision”) was made upon a petition against the Director of Immigration (“DI”)’s further assessment of persecution and Hong Kong Bill of Rights risks dated 5 December 2018.  A copy of the NRCPO Decision can be viewed by the following hyperlink[1].

2.  The Applicant is a Bangladeshi national.  In the Applicant’s Form 86 and supporting affirmation, he has failed to identify any alleged errors of law, irrationality or procedural unfairness in the NRCPO Decision.  His non-refoulement claim was based on an alleged risk of being harmed or killed by a money lender who was said to have political connection.  After an oral hearing, the NRCPO found the Applicant’s assertions incredible as he had provided significantly different information at different stages of his claim process.  The NRCPO did not accept that the Applicant’s age or passage of time could sufficiently explain the difference.

3.  In the oral hearing before me, the Applicant confirmed that he had nothing else to add to the papers filed in his application.  He just stated that his problem in Bangladesh still continued and he wished to have the NRCPO Decision reviewed.

4.  I have reviewed the NRCPO Decision vigorously.  In my judgment, it was based on sound factual findings and there was no apparent legal error in the decision.  Those findings were within the Board’s discretion and supported by evidence.

5.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’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).

6.  The leave application to apply for judicial review 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