KHAN MUMRAIZ v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 728/2020

[2025] HKCFI 4181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 728 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 only putative respondent, the DI as the only putative interested party and the NRCPO’s 2020 Decision as the only 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 21 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decisions of (i) the Director of Immigration (“DI”) dated 1 June 2017 (“DI’s 2017 Decision”) and (ii) an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) made on 11 March 2020 (“the NRCPO’s 2020 Decision”).  A copy of the NRCPO’s 2020 Decision can be viewed by the following hyperlink[1].

2.  The DI’s 2017 Decision focussed on the Applicant’s right under Article 2 of the Hong Kong Bill of Rights (“BOR2”).  The Applicant was dissatisfied with the DI’s 2017 Decision.  He petitioned against that to the NRCPO.  The petition was dismissed by the NRCPO’s 2020 Decision.  Accordingly, the NRCPO’s 2020 Decision also focussed on the Applicant’s BOR2 right only. 

3.  The Applicant’s other applicable grounds for non-refoulement claims were previously assessed by other decisions of the DI and the Torture Claims Appeal Board/NRCPO in 2014 and 2017 respectively.  They are not the subject of the present application.  

4.  The Applicant named the DI and the DI’s 2017 Decision as the putative respondent and the decision sought to be reviewed in the Form 86 on top of the NRCPO and the NRCPO’s 2020 Decision.  In the oral hearing before this Court, I explained to the Applicant the DI’s 2017 Decision has been superseded by the NRCPO’s 2020 Decision in law.  Upon my explanation, he clarified that he only sought to review the NRCPO’s 2020 Decision.  On my own motion, I amended the Form 86 as per paragraph 1 of my order above.

5.  The Applicant is a national of Pakistan who came to Hong Kong in around March 2008. He surrendered himself to the Hong Kong Police on 14 October 2009 and filed a torture claim on 16 October 2009.  He subsequently went through various procedures including (i) the unified screening mechanism without BOR2 assessment and (ii) the BOR2 assessment process leading to this application. 

6.  Meanwhile, the Applicant started a family in Hong Kong.  He married an Indonesian lady and they gave birth to 2 children in Hong Kong in 2016 and 2018 respectively.  The Applicant once submitted an application in these proceedings to “join” (i.e. consolidate) the “cases” of his wife and the children to the Applicant’s.  It was rejected by Deputy High Court Judge KW Lung in 2023 as the materials exhibited to one of the Applicant’s affirmations show that the cases of his wife and children had been the subject of different judicial review proceedings HCAL 1605/2018 and HCAL 2274/2020, and they had been determined by another Judge in March 2021 (neutral citation [2021] HKCFI 612).  It was thus impossible for the Court to grant any joinder or order of consolidation.  

7.  As to this leave application to commence judicial review, it was recorded, in the DI’s 2017 Decision, that when the Applicant was invited in 2017 to provide additional facts and materials for specific consideration on the Applicant’s BOR2 risk after his claim under other applicable grounds had been dismissed, the Applicant did not provide any.  It was further recorded in the NRCPO’s 2020 Decision that the Applicant did not provide information towards his BOR 2 risk assessment after he was invited by the NRCPO to do so in 2019. There has been no suggestion that these were not the actual circumstances.

8.  In such circumstances, there is plainly no merit in this application. The Applicant did set out a few paragraphs of “grounds on which relief is sought”.  His complaints were various (e.g. the NRCPO adjudicator did not give him sufficient time to arrange for relevant evidence and failed to have regard to the serious corruption in Pakistan).  I do not intend to set out all these complaints one by one.  I only need to mention that, given this leave application only targeted and could only target the BOR2 process, none of the Applicant’s complaints is arguable in the light of the fact that he did not submit any additional fact/materials specifically on BOR2 even though he had been invited to do so by both the DI and the NRCPO.  

9.  The leave application is therefore 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