Ehsan Muhammad v. Non-refoulement Claims Petition Office

HCAL 736/2020

[2025] HKCFI 4182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 736 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;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

1.   The Applicant’s Form 86 be amended to name the NRCPO as the only putative respondent and the DI as the only 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 22 April 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision made by Mr Ian Candy on 16 April 2020 (“the NRCPO’s 2020 Decision”).  Mr Candy made the NRCPO’s 2020 Decision in his capacity as an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”). A copy of the Decision can be viewed by the following hyperlink[1].

2.By the NRCPO’s 2020 Decision, the Director of Immigration (“DI”)’s decision dated 19 June 2017 was confirmed (“the DI’s 2017 Decision”). 

3.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. 

4.The Applicant’s other applicable grounds for non-refoulement claims were previously assessed in other decisions by (i) the DI in 2015 and (ii) the Torture Claims Appeal Board (“TCAB”) and NRCPO (also by Mr Candy as its member/adjudicator) in 2017 respectively.  They are not the subject of the present application.  

5.The Applicant named the DI and the TCAB as putative respondents, which is incorrect in the circumstances of the present case.  On my own motion, I amend the Form 86 as per paragraph 1 of my order above.

6.In the oral hearing before this Court, the Applicant confirmed that he challenged the NRCPO’s 2020 Decision for it was made without a hearing.  But the Applicant also fairly accepted that he did not submit any additional facts/materials in relation to the BOR2 process involving the DI’s 2017 Decision and the NRCPO’s 2020 Decision.   

7.As held by the Court of Appeal in Re Tamrakar Gita [2018] HKCA 632, an NRCPO adjudicator is entitled not to hold further hearing on just BOR2 risk if it had previously heard an applicant’s case on other applicable grounds of non-refoulement claim and the relevant applicant had no additional facts or new arguments to submit.  An applicant would not be prejudiced by the lack of a new BOR2 hearing in such circumstances.  Applying the authority to this case, there is no merit in the Applicant’s leave application.

8.The leave application is accordingly dismissed.

Dated the 10^th day of September 2025

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