Anwer Danish v. Torture Claims Appeal Board

HCAL30/2017

[2019] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 30 of 2017

BETWEEN

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 counsel [  ] in open court;

Order by The Honourable Mr Justice Lok:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.This is an application for leave to apply for judicial review challenging the decision of the Member of the Torture Claims Appeal Board and the Adjudicator of the Non-refoulement Claims Petition Office dated 23 January 2017 (“the Decision”).  In the Decision, Mr Wong Chun Kong (“the Adjudicator”) affirmed the decision of the immigration officer rejecting the Applicant’s non-refoulement claims.

2.The Applicant has not requested an oral hearing to hear his leave application.

3.In the Form 86 and his supporting affirmation, the Applicant just complains that he is not satisfied with the Decision and repeats his allegation that his life will be in danger if he has to go back to India.  Nothing has been put forward to suggest that the Adjudicator had erred in making the Decision.  Neither is there any allegation of procedural unfairness as to the way in which the Adjudicator conducted the oral hearing.

4.I have carefully considered the detailed written decision of the Adjudicator.  In my judgment, the Adjudicator had properly applied the law in reaching the Decision.  All the grounds for non-refoulement claims had been properly considered.  An oral hearing was held, in which the Applicant decided not to give any oral evidence and just to rely on all the other materials before the Board.  The Adjudicator had carefully and properly considered all such evidence and materials, and the Adjudicator cannot be faulted for reaching the conclusion that the Applicant had failed to establish any of the grounds for non-refoulement claims.

5.Though the Applicant was not legally represented in the hearing, the Adjudicator had properly discharged the duty owed to self-represented claimant in the conduct of the hearing.  He had also properly explained to the Applicant that it was his burden to prove his case and the various issues that might affect his claim.  The Applicant was given adequate opportunity to address those issues, and there was simply no procedural unfairness to the Applicant.

6.As the Applicant’s intended judicial review does not have any prospect of success, I refuse his application for leave to apply for judicial review.

Dated the 5^th day of June 2019

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