ALAM CHIDDIQUE MOHAMMAD NUR v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1192/2021

[2026] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1192 of 2021

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 Non‑Refoulement Claims Petition Office as putative respondent and add the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 25 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”)/ Non‑Refoulement Claims Petition Office (“NRCPO”) made on 28 July 2021 (“the Board Decision”). From a reading of a copy of the Board Decision attached to the supporting affirmation, it is noted that the Board Decision was only made by an adjudicator sitting for the NRCPO. The TCAB had separately assessed the Applicant’s torture risk under the Immigration Ordinance (Cap. 115) back in 2012. By the Board Decision, the NRCPO focussed on other applicable risks. A copy of the Board Decision can be viewed by the following hyperlink[1].

2.  The Board Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 30 November 2018. In the circumstances, paragraph 1 of the above orders is made to properly name all the parties of concern.

3.  The Applicant is a Bangladeshi national. He claimed to be a member of a political party called Bangladesh Nationalist Party. His non-refoulement claim was based on an alleged risk of being harmed or killed by the people of a political party called Awami League. After an oral hearing, the NRCPO came to the finding that the Applicant was not subject to any real risk of being harmed, killed or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Bangladesh. In coming to the finding, the NRCPO found aspects of the Applicant’s claim incredible, with detailed analyses.

4.  In relation to this original basis of the Applicant’s claim, it has been reiterated time and again that the primary responsibility for the factual assessment lies with the TCAB/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). In fact, the Applicant has not put forward any proper public law ground in the Form 86, affirmation or oral submissions to this Court.

5.  When the claim was assessed by the NRCPO, and during the hearing of this Court, the Applicant had referred to his health issue including heart attack, minor stroke, hypertension and blockage of blood vessels. Based on the limited materials available to the Court, this health issue was not put forward as a basis of the Applicant’s claim under Articles 2 or 3 of the Hong Kong Bill of Rights in the previous claim processes. It was mentioned more as a piece of background information. There was no assertion that the treatment the Applicant currently receives in Hong Kong is not available in Bangladesh. There was also no assertion that the Applicant would be subject to a high risk of “imminent death” or “serious, rapid and irreversible decline in health amounting to intense suffering” once he is removed back to Bangladesh and the current treatment he has in Hong Kong is withdrawn from him. Principles relevant to this area of non-refoulement protection can be seen from English authorities such as AM (Zimbabwe) v Secretary of State for the Home Department [2021] AC 633, which are persuasive to Hong Kong Courts.

6.  During the hearing of this Court, the Applicant put emphasis on this health issue instead of his political involvement in Bangladesh. He mentioned that he had spent a significant sum of money and long time for treatment of his heart problem in Hong Kong, and he would require the medicines dispensed to him by Hong Kong’s public hospitals. He produced appointment slips and medicine record from the Hospital Authority to show the same.

7.  However, judicial review is not an avenue for the Applicant to lodge a claim based on a new basis of risk (even though it is arguably associated with his rights under Articles 2 and 3 of the Hong Kong Bill of Rights). This Court’s function is only to review the legality of an administrative decision-making process which has been done, but not to assess a non-refoulement claim afresh. As there has been no prior assessment of the Applicant’s health issue and its impact on his fundamental rights, which obviously entail different considerations, it is inappropriate for this Court to express any view on it. Having read the DI’s tier-1 decision and the NRCPO’s tier-2 decision, I am unable to say the lack of prior assessment was an error on the decision-makers’ part. Nothing suggests that it should have been flagged up as a distinct issue requiring assessment under the joint endeavor principle.

8.  In the circumstances, the Applicant cannot now rely on the health issue as a ground to challenge the Board Decision. I have reviewed the Board Decision vigorously, but do not find the proposed judicial review reasonably arguable. 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