Mohammad Firoj and Others v. Torture Claims Appeal BoardApplication for Leave To Apply for Judicial Review
Read the full judgment text of HCAL 232/2017 on BabelCite. This High Court CFI judgment was delivered on 22 January 2018.
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 Int
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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 Following :
Order by the Honourable Madam Justice M Poon:
Observations for the applicant 1.The applicants are of Indian origin. The 1st and 2nd applicants are husband and wife and the 3rd and 4th 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:
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. Dated the 22nd day of January 2018.
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 |
Cases cited in this judgment
Further hearings and rulings under HCAL 232/2017