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Re Khan Wasiq

Judgment Cited authorities 13 Cited in 1 Precedent Map Related
Vincent
Judgment Date10 October 2018
Neutral Citation[2018] HKCA 689
Year2018
Judgement NumberCACV300/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV300/2018 RE KHAN WASIQ

CACV 300/2018

[2018] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2018

(ON APPEAL FROM HCAL 1054/2017)

__________________________

RE: KHAN WASIQ Applicant

__________________________

Before: Hon Lam VP, McWalters JA and L Chan J in Court
Date of Written Submissions: 20 August 2018
Date of Hearing: 20 September 2018
Date of Judgment: 10 October 2018

________________

JUDGMENT

________________

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

1. This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 29 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2. The applicant is a national of Pakistan. He arrived in Hong Kong from the Mainland China on 24 August 2011. On 25 August 2011, the Director of Immigration (“the Director”) refused to grant him permission to land. The applicant then lodged a torture claim[1], which was subsequently rejected by the Director on 15 March 2012. He elected not to appeal against this decision of the Director. After the commencement of the unified screening mechanism, the applicant lodged another claim for non-refoulement protection in June 2014. The claims were based on fear of attack for the applicant’s customers after their motor bikes placed at his store were stolen.

3. The facts related to the applicant’s claims were set out by the Judge in the CALL-1 Form at [2018] HKCFI 1435 at [1] to [3].

4. Since the applicant’s torture claim had already been rejected by the Director, the assessment of his non-refoulement claim was only based on the BOR 3 risk[2] and the persecution risk[3]. By a notice of decision dated 1 April 2015 (“the Director’s First Decision”), the Director determined the said risks against the applicant.

5. The applicant petitioned to an adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) against the Director’s First Decision. Although an oral hearing was scheduled to be held on 8 March 2016, the applicant failed to attend the hearing. The Adjudicator dismissed the petition on 21 April 2017 (“the Adjudicator’s First Decision”).

6. By a letter dated 25 April 2017, the applicant was invited to submit additional facts in respect of his BOR 2 risk[4]. The applicant submitted two letters (one dated 27 April 2017 and the other undated) for the Director’s consideration. It was stated in the letters that the applicant’s enemies were still harassing his family and looking for his whereabouts. By a notice of further decision dated 10 May 2017 (“the Director’s Second Decision”), the Director determined that the applicant failed to establish his claim under the BOR 2 risk.

7. The applicant petitioned to the Adjudicator against the Director’s Second Decision. An oral hearing was held on 20 November 2017. In the hearing, the applicant told the Adjudicator that his customers were still looking for him in February 2012 and he was still under threat from them. After hearing the applicant, the Adjudicator found that the applicant failed to establish a claim based on the BOR 2 risk which justified a non-refoulement protection. The Adjudicator dismissed the petition on 1 December 2017 (“the Adjudicator’s Second Decision”).

The Judge’s decision

8. The applicant filed a form 86 on 12 December 2017. The applicant advanced the following grounds for seeking relief in the form 86:

(a) Against the Adjudicator’s First Decision that the adjudicator failed to examine or give sufficient weight to the extended concept of state acquiescence, and failed to put weight on the evidence suggesting the inefficiency, ineffectiveness and corruption in the Pakistani police, as well as the violation of human rights in Pakistan;

(b) Against the Director’s Second Decision that the Director failed to take into account the fact that the applicant was not legally represented; and

(c) Against the Adjudicator’s Second Decision that the Adjudicator failed to apply the high standard of fairness and to make sufficient enquiry into the threats against the applicant and whether the applicant suffered any mental injuries.

9. After hearing the applicant on 25 May 2018, the judge decided on 29 June 2018 that leave should not be granted to the applicant to apply for judicial review. His reasons in refusing to grant leave are set out in [11] to [15] of the CALL-1 form.

The appeal

10. In the notice of appeal filed by the applicant on 9 July 2018, the applicant advanced the following grounds of appeal:

“ 1. The learned...

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1 cases
  • Re Khan Wasiq
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 22 January 2019
    ...J U D G M E N T ________________ Hon Lam VP (giving the Judgment of the Court): 1. By our judgment dated 10 October 2018 (published as [2018] HKCA 689), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 29 June 2018 ([2018] HKCFI 1435) refusin......

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