MOHAMMAD FIROJ AND OTHERS v. TORTURE CLAIMS APPEAL BOARD Application for Leave to Apply for Judicial Review

HCAL 232/2017

[2018] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.232 of 2017

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following :

Leave to apply for Judicial Review refused.

Observations for the applicant

1. The applicants are of Indian origin.  The 1^st and 2^nd applicants are husband and wife and the 3^rd and 4^th applicants are their children.  A1 came to Hong Kong on 18 March 2008 as a visitor but stayed on illegally after his visa expired.  Two weeks later he was arrested for illegal remaining by the police on 8 April 2008.  He lodged his torture claim on 19 April 2008 and later a non‑refoulement claim under the USM. Whilst on Immigration recognizance, A1 committed Blackmail and Criminal Intimidation and was sentenced to 14 months’ imprisonment.  It was after his release from prison that A2, A3 and A4 came to Hong Kong on 9 April 2014, initially on the strength of visas but overstayed thereafter.  Afterwards they surrendered to the Immigration Department and raised non‑refoulement claim.

2. By a Notice of Decision dated 24 December 2015, their claims were refused by the Director of Immigration.  On 5 January 2017 they lodged an appeal to the Board, the appeal was heard on 9 March 2017 and dismissed on 21 April 2017.

3. The applicants applied for leave for judicial review on 24 May 2017.  Their legal aid applications were refused on 9 October 2017.  At the outset of the application for leave hearing A1 handed up a Notice of Appeal dated 13 December 2017 against the decision of the Director of Legal Aid.  I ruled against any further adjournments and proceeded with the hearing.

Allegations made by the Applicants

4. A1, who spoke on behalf of the other applicants, adopted contents of the Form 86 and the Affirmations.  Apart from raising discontent as to the refusal of his claim by both the Director and the Board, he told the court that on 25 January 2017 he learned that Amin had abducted A2’s parents, in an attempt to show the risks that he and his family would safe should they return to India.  He also complained about procedural irregularities in his Affirmation affirmed dated 24 May 2017, namely, that:

a. They were only informed of the appeal hearing one week in advance with an intervening weekend, which left them insufficient time to prepare for the hearing especially in view of their limited language skills and lack of legal representation, and causing them to handicapped at the hearing before the Board.

b. That the Board wrongful relied on unconfirmed sources of news to their disadvantage.

5. Therefore, he asked for an order of Certiorari that the decisions of the Board and the Director be set aside.

Consideration of the application

6. The Adjudicator was alive to the issue of the alleged “abduction” of A2’s parents.  (Decision para 4.1) This was considered together with the other evidence of A1.  After assessing his evidence, the Adjudicator found him dishonest and unreliable. (para 4.6)

7. Whilst the applicants complained about the insufficiency of time and assistance to prepare for his appeal, they attended and indeed participated in the hearing before the Adjudicator.  According to paragraph 4.1 of the Decision, A1 spoke for himself and on behalf of A2 and the children.  He understood his rights and he decided to answer questions by the Adjudicator.  Further, according to paragraph 18 of the Decision, the Adjudicator had put the relevant COI and the implications to A1 and taken into account the comments that he had to make.  The adjudicator was entitled to come to the conclusion as he did.

8. It is clear from the Form 86 and the Affirmation filed for the purpose of this leave application, and indeed what he told the court at the hearing about a friend helped him to compile these clearly shows that the applicants must have access to and was able to seek the necessary advice and assistance that was required.

9. The claim had been thoroughly canvassed and assessed by reference to the applicable laws and principles.

Conclusion

10.  I do not find that there was any procedural irregularities or unfairness which failed to meet the high standard of fairness, or that the rights of the applicants had been compromised.

11.  In my judgment, the applicant failed to show that his grounds of judicial review are reasonably arguable with a realistic prospect of success[1].

12.  The application for leave to apply for judicial review is therefore refused.

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

[1] See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676