RASOOL GHULAM v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1354/2020

[2026] HKCFI 1349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1354 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 Form 86 be amended on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan. By a Form 86 filed on 30 June 2020 (“Form 86”), and a supporting affirmation also filed on 30 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Non‑Refoulement Claims Petition Office (“NRCPO”) dated 19 June 2020 (“NRCPO Decision”)[1]. The NRCPO Decision was exhibited to the Affirmation.

2.  The Applicant sought an oral hearing of his application, at which he appeared and said he had nothing else to say.

3.  I will use the abbreviations and definitions from the NRCPO Decision and the USM 715 Decision[2] (defined below) unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision and the USM 715 Decision, as well as in the Director’s Further Decision (defined below). I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by people from the PPP;

(2)  The Applicant’s claim was assessed on the basis of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected as not being substantiated in a decision of the Director of Immigration (“Director”) dated 31 December 2014 (“Director’s 1^st Decision”);

(3)  The Applicant filed a Notice of Appeal/Petition against the Director’s 1^st Decision to the TCAB/NRCPO. The latter determined that he had failed to make out his claim for non-refoulement relief on the basis of BOR 3 Risk, Persecution Risk, or Torture Risk in a decision dated 8 November 2016 (“USM 715 Decision”). No further steps were or have been taken by the Applicant in relation to the USM 715 Decision;

(4)  The Director by a letter dated 19 April 2018 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. The Applicant failed to do so by the deadline of 3 May 2018. The Director then found, by a decision dated 4 May 2018 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim;

(5)  On 31 May 2018 the Applicant submitted a notice of appeal/petition against the Director’s Further Decision, which included an application for late filing (“2^nd Petition”); and

(6)  On 19 June 2020 the NRCPO (which was constituted by the same adjudicator who had made the USM 715 Decision) issued the NRCPO Decision, in which it refused the Applicant’s application for late filing of his 2^nd Petition.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The Applicant has not identified or set out any grounds of judicial review in the Form 86. The Affirmation merely claims that the Applicant does not agree with the NRCPO Decision. That is not a ground of judicial review. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds.

10.  The NRCPO set out the circumstances in which the late filing application had been made, as well as relevant portions of the Immigration Ordinance (CAP. 115) (“Ordinance”)[7]. It had regard to such and addressed the explanation that had been provided by the Applicant for late filing, which it did not accept. As to the strength of the petition, it considered that it did not have sufficient documents or information to decide on the grounds of appeal and that it was hence not appropriate to consider the strength of such grounds. There was also no obvious or exceptional reason to allow the application and hence in the circumstances there was no reason to allow, and it would not be unjust to not allow, the late filing. Accordingly, the application was refused.

11.  I do not see that the Applicant has any reasonably arguable case that there was any procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that justifies vitiation of the rejection of the late filing application in, and hence the grant of leave in relation to, the NRCPO Decision. In particular, and while per Qasim Ali [2019] HKCA 430 the NRCPO should at the time have considered the merits of the Applicant’s case with regard to its previous decision (i.e. the TCAB Decision), there is no realistic prospect that remittal would or might lead to a different outcome, it would hence be futile to remit the matter, and leave should hence be refused as there is no realistic prospect of relief being granted as:

(1)  I see no public law basis to vitiate the NRCPO’s approach and conclusions as to the reasons for the late filing;

(2)  On remission the NRCPO would apply the current s. 37ZT(2) and (3) (see Cadnan Foose Maxamad [2022] HKCFI 429 at §§20-21; Ripon Mohammed [2022] HKCFI 592 at §34.a. to b.), and given the above, as well as the reasons and lack of evidence advanced by the Applicant, I see no prospect that the outcome in relation to the application for late filing would be any different; and

(3)  There would not be a different outcome even if an NRCPO were (on remission) to apply those sections of the Ordinance in force at the time of the NRCPO Decision and consider the merits of the Applicant’s underlying case in the 2^nd Petition. After all, the TCAB/NRCPO had found the claim of BOR 3 Risk to be not substantiated in the USM 715 Decision (which it is not suggested should be vitiated on any grounds), and on the basis of the findings made therein it is inevitable that BOR 2 Risk would also be dismissed (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33). I also do not see that the contents of the 2^nd Petition in relation to the merits[8] advance any facts or matters that even begin to suggest that a different conclusion would have been or could be reached by the NRCPO. Nor is there any such material in the Form 86 or Affirmation (see Garcia Dennis Casenas [2025] HKCA 303 at §§19-20; Luu Thi Tuyet Lan [2021] HKCFI 202 at §§18-24, [2021] HKCFI 3541 at §§16-17, [2022] HKCA 872 at §§11, 17).

12.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

13.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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