Riaz Yasmeen v Torture Claims Appeal Board /Non-Refoulement Claims Petition Office

HCAL435/2017

[2018] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 435 of 2017

BETWEEN

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

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

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

1.  The applicant is a Pakistani national who tried to enter Hong Kong from Shenzhen then on 25 March 2014 but was refused permission to land.  Whilst pending his removal to Mainland China, the applicant submitted to written significations for non-refoulement on the same day.  His claim for non-refoulement protection was then assessed and rejected on 17 June 2014 and 4 January 2017 by the Director of Immigration (“the Director”).  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) in July 2014.  However, two weeks later the applicant withdrew his appeal.  In December 2014 the applicant wrote to the TCAB to apply to reopen his appeal but it was refused.

2.  In January 2017 the applicant did lodge an appeal/petition to the TCAB after the Director had found on 4 January the applicant had failed to establish that his BOR 2 rights would be violated if refouled to Pakistan.  The adjudicator of the TCAB dismissed that appeal on 7 July 2017 without a hearing.  The applicant filed a notice of application for leave to apply for judicial review on 21 July 2017.  He requested an oral hearing which was set down on 19 December 2017 and the applicant appeared in person.

3.  On 19 December 2017 the applicant did appear in person but requested an adjournment on the basis that he had applied for legal aid only about four days after he applied for leave to apply for judicial review on 21 July.  He did not have the legal aid card with that date stamped on it with him in court but had a photograph of it in his mobile phone.  When asked to produce the mobile phone photograph he could not.  When presented with a letter from the Legal Aid Department addressed to the court and informing the court that the applicant had just applied for legal aid dated 28 September 2017 (the courts’ notice of hearing was posted to the applicant on 20 September 2017) the applicant was adamant he had applied in July.  I proceeded with the hearing on the basis that the legal aid application was late and tardy but gave the applicant the opportunity to return on the following day at 10am with his legal aid card proving the July application.  The applicant was absent on the following day.

4.  This application relates only to leave to apply for judicial review of the decision makers’ decision to reject the applicant’s BOR 2 risk claim and BOR 2 risk claim appeal.  After the Director’s decision in June 2014, the Director wrote to the applicant again in December 2016 and invited him to submit additional facts if he had any that he considered relevant to his claim, including any other absolute and non-derogable rights under Article 2 of the Hong Kong Bill of Rights (“HKBOR”) in case he had omitted any relevant facts previously.  He was given two weeks to submit further information, he did not and on 4 January 2017 the Director rejected his BOR 2 risk claim after having reviewed his claim and evidence on the further basis of whether the applicant will be subject to any risk of his absolute and non-derogable rights under the HKBOR being violated upon his removal to Bangladesh, in light of the assessment on the risk of his feared treatment as set out in the Director’s decision of June 2014.

5.  There is no requirement for the Director to hold another interview in particular, where there is no additional information supplied by the applicant.  He can rely on the interviews previously conducted. It is abundantly clear in any event, that BOR 2 was not relied upon by the applicant from the outset.

6.  The adjudicator of the TCAB decided that it was not necessary to conduct an oral appeal hearing in relation to the BOR 2 risk claim appeal.  This is despite the fact the applicant had submitted four pages of grounds of appeal.  The adjudicator identified the grounds to be new material or evidence from the applicant.

7.  The adjudicator set out Article 2 in her decision and analyse the applicant’s case and evidence. What she finds is that on the applicant’s own evidence, he was not relying on a breach of the rights protected by BOR 2.  He did not put forward evidence to show he would be at risk of harm from capital punishment inflicted by the government of Pakistan or face harm from his government that would put his life at risk.  He was never saying that if refouled there was a real risk of a breach of BOR 2.  There was no necessity of an oral hearing.

Leave to apply for judicial review

8.  The applicant’s affirmation is not easy to decipher mainly because he refers to and sets out grounds against the decisions of the Director and TCAB that are not subject to this application.

9.  Grounds relevant to the decision subject of this application include a submission it was the fact the applicant did not receive any letter inviting him to submit further or additional information regarding his BOR 2 risk which prejudiced his chances.  It was unfair that he was not afforded an oral hearing before his BOR 2 claim was dismissed.  It was also improper that his appeal was determined without an oral hearing.

10.  In court, the applicant reiterated that he had no chance to provide further information and it was unfair he had no appeal hearing.  I find no merit in his grounds.  The adjudicator still maintained a high standard of fairness despite not conducting an oral hearing.  It is not an automatic right and in a situation such as this, there would have been no necessity when there was no point of law, no issue of credibility nor any questions that required clarification.

11.  I do not find any ground that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

12.  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.

Dated 23^rd day of April 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