Re Hussain Muhammad Asif

Court:Court of Appeal (Hong Kong)
Judgement Number:CAMP175/2018
Judgment Date:10 Apr 2019
Neutral Citation:[2019] HKCA 408
CAMP175/2018 RE HUSSAIN MUHAMMAD ASIF

CAMP 175/2018

[2019] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLAANEOUS PROCEEDINGS NO 175 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 720/2017)

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RE: HUSSAIN MUHAMMAD ASIF Applicant

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Before: Hon Chu and Barma JJA in Court
Date of Judgment: 10 April 2019

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1. This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 29 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 22 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 26 April 2016 and 17 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Pakistan. He entered Hong Kong on 31 July 2014 illegally and was arrested by the police on 3 August 2014. He lodged a non-refoulement claim on 6 August 2014.

3. The applicant’s claim was based on threats from his relatives because of a land dispute. The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4. By a Notice of Decision dated 26 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5. By a Notice of Further Decision dated 17 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 18 August 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 22 September 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7. At [25] – [48] of the Board’s Decision, the Board gave reasons for not accepting the evidence of the applicant. The Board was also satisfied at [55] that state protection would be available for the applicant and at [85] that internal relocation would be viable.

The judge’s decision

8. The applicant filed a Form 86 on 6 October 2017 which contained no ground for seeking relief.

9. In the affirmation in support of the leave application dated 6 October 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(i) lack of legal representation;

(ii) lack of language assistance;

(iii) no reasons given by the Director in his Further Decision; and

(iv) lack of fair hearing.

10. The applicant was absent from the oral hearing before the judge fixed for 27 April 2018. The judge went on to deal with the application on paper.

11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [32] to [46] of the CALL-1 Form:

“32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the...

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