Ahmed Naqash v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 768/2017[2018] HKCFI 963

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 768/2017

[2018] HKCFI 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 768 of 2017

BETWEEN
	AHMED NAQASH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent

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 The Honourable Madam Justice Au-Yeung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant (Order by The Honourable Madam Justice Au-Yeung):

1.The applicant has to show arguable grounds for judicial review.

2.The Court of First Instance plays a supervisory role, and the crucial issues are: whether there was any error of law; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and whether the substantive decision satisfied the enhanced Wednesbury test. See TK v Jenkins & anor, HCAL 126/2010, 21 October 2011 (per Lam J, upheld on appeal), §87; TK v Jenkins & anor [2013] 1 HKC 526 (Court of Appeal), §40; Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45.

3.The standard of review is that of “rigorous examination and anxious scrutiny to ensure that the required high standards of high fairness have been met”: Secretary for Security v Sakthevel Prabakar, §45.

4.The enhanced Wednesbury test is an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision. See AM v Director of Immigration & anor [2014] 1 HKC 416, §34.

5.In the present application, the TCAB has carefully considered all 4 limbs of the applicant’s non-refoulement claim. The TCAB correctly applied the law and the standard of proof for each limb. The Adjudicator invited the applicant to answer questions at the oral hearing, but the applicant declined (§18 of TCAB's decision). In the end, the TCAB found that the applicant has failed to establish that the feared risk of being killed was likely to materialize. All 4 limbs of the claim were held not to be satisfied.

6.The grounds for judicial review contained several pages of key words/phrases, articles of various conventions or Bill of Rights, and citations from judgments, without elaboration. It was not clear how those matters applied to the applicant. The applicant did not even allege that the TCAB had erred.

7.The applicant has failed to show arguable grounds of appeal. The application for leave is thus dismissed.

Dated 2^nd day of May 2018.

	(Bernard WONG)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 2/5/2018 AHMED NAQASH Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/5/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: (20) in USM 3372/16/3/177/P890 Director of Immigration Ref. no.: RBCZ 9000921/16 (formerly RBCZ 671/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 2 cases

Cases cited in this judgment

Secretary for Security v. Sakthevel Prabakar

Tk v. Michael C Jenkins, Esq and Another

HCAL 126/2010

High Court CFI21 Oct 2011