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Re Aamir Nadeem

Judgment Cited authorities 18 Cited in 1 Precedent Map Related
Vincent
Judgment Date15 April 2021
Neutral Citation[2021] HKCA 420
Year2021
Judgement NumberCAMP85/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP85/2020 RE AAMIR NADEEM

CAMP 85/2020

[2021] HKCA 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1453 OF 2018)

____________________

RE: AAMIR NADEEM Applicant

____________________

Before: Hon Yeung VP and Chu JA in Court
Date of Written Submissions: 12 August 2020
Date of Judgment: 15 April 2021

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1. By the decision of 2 July 2019 (“the Decision”)[1], Deputy High Court Judge K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 July 2018. In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 22 May 2017 rejecting the applicant’s non-refoulement claim.

2. On 30 August 2019, the applicant took out a summons for an extension of time to appeal against the Decision and by the decision made on 26 June 2020, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3. By a summons dated 7 July 2020, the applicant renewed his application before this Court for an extension of time to appeal against the Decision.

4. Pursuant to the directions made by the Registrar of Civil Appeals on 29 July 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 18 August 2020. The applicant lodged his written submissions as directed.

5. Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6. The applicant is a national of Pakistan. He entered Hong Kong illegally on 16 December 2015 and was arrested by the police on the same day. He was then transferred to the Immigration Department for investigation. On 20 December 2015, he lodged his non-refoulement claim by way of a written representation on the basis that if he were to return to his home country, he would be harmed or even killed by the supporters of the Pakistan Muslim League (N) (“PML(N)”) as the applicant was a supporter of an opposition party. The applicant further claimed that he feared to be arrested by the Pakistani police because of the accusation of destroying government premises and murder of police officer during a strike. The factual background was succinctly summarized by the Judge at [2] – [4] of the Decision.

7. By Notice of Decision dated 22 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

8. The applicant lodged an appeal/petition to the Board against the Director’s decision. After hearing the appeal on 14 May 2018, by its decision made on 6 July 2018, the appeal was dismissed. The Board found that the applicant was not a credible witness as his evidence was inconsistent. The alleged injury did not attain the minimum severity that come within the definition of “torture”. Further, reasonable state protection should be available and internal relocation is also a viable option. For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds.

9. On 24 July 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions. The Judge had rightly pointed out that the Director’s decision is not a decision that, within the administrative structure, susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, see Re Moshsin Ali [2018] HKCA 549. The Judge just dealt with the grounds against the Board’s decision set out in the applicant’s supporting affirmation as follows:

(1) There was a lack of legal assistance and representation.

(2) The Board had adopted a biased approach by cherry-picking the Country of origin information (“COI”) to say that state protection is available to him.

(3) The Board’s decision was not translated to him.

The Judge’s decisions

10. The application was heard on 23 January 2019 and by the Decision made on 2 July 2019, the Judge refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions. The reasons were set out at [12] to [20] of the Decision:

“The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. The applicant has not set out any exceptional circumstances.

14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15. The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

16. The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. But he was not happy with her Decision.

17. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (1) fails.

18. Ground (2) is the applicant’s opinion without any evidence to support it. It fails.

19. The applicant said in court that his friend had assisted him with the hearing bundle and the Board’s Decision. Ground (3) fails.

20. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

11. The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 16 July 2019. On 30 August 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. In his supporting affirmation, he advanced the following:

(1) The Decision was...

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1 cases
  • Re Aamir Nadeem
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 Agosto 2021
    ...J U D G M E N T ________________________ Hon Yeung VP (giving the Judgment of the Court): 1. By a judgment dated 15 April 2021 ([2021] HKCA 420), this Court (Yeung VP and Chu JA) refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Depu......

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