ARSHAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1661/2018

[2019] HKCFI 780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1661 of 2018

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;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani national who arrived in Hong Kong illegally and was arrested by the police on 13 November 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 13 January 2016 and by a notice of further decision on 25 April 2017.  The applicant had appealed that first decision and it was dismissed by the Torture Claims Appeal Board (“TCAB”) on 24 March 2017.  The applicant lodged another appeal after receiving the notice of further decision and this was dismissed by the TCAB adjudicator on 14 August 2018.  

2.  The chronology of the decisions and appeals are set out in detail in the adjudicator’s decision.  The notice of further decision related to the applicable ground under Article 2 of the Hong Kong Bill of Rights (“BOR 2”).  The Director had invited the applicant to submit additional facts but there was no response or submission of any additional material relating to a BOR 2 claim; the Director rejected that BOR 2 claim on 25 April 2017.

3.  The adjudicator of the TCAB was well aware of the fact that his decision preceded this notice of further decision.  He considered the applicant’s submissions in his notice of appeal/petition dated 8 May 2017.  He determined that the appeal/petition could proceed without a hearing and rejected it on 14 August 2018.  The applicant then filed a notice of application for leave to apply for judicial review on 17 August 2018.  He has not requested an oral hearing.  I have considered his application on the papers.

4.  This application only concerns his BOR 2 risk claim determination.  The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  The adjudicator found there to be no need for further questions.  He found there to be no advantage in holding an oral hearing.  He took into account what grounds were submitted by the applicant in his notice of appeal/petition.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.  The adjudicator set out Article 2 and found that the nature and scope of the non-refoulement protection afforded by BOR 2 had no relevance to the non-refoulement claim as presented by the applicant.  He found the applicant could not succeed in establishing a case under BOR 2.  The adjudicator confirmed the decision of the Director.

5.  Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Pakistan, have the death penalty imposed on him or otherwise be deprived of his right under BOR 2.

Leave to apply for judicial review

6.  The applicant has filed an affirmation but it contains no grounds.  He does not complain of procedural impropriety; he does not complain that the adjudicator was wrong not to conduct an oral hearing and that he was deprived of a chance to be heard.  He only repeats that his life is still in danger in his home country.  In view of the lack of grounds, a letter was sent to the applicant dated 25 January 2019 to which he replied that he had no further submissions to make to support his application.

7.  I have examined the adjudicator’s decision as well as the decisions of the Director and find no error of law by the decision-maker.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  I see no impropriety or unfairness in the decision not to conduct another oral hearing to consider the additional ground of a BOR 2 claim.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

8.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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