Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Nadeem Asif

Judgment Cited authorities 22 Cited in 1 Precedent Map Related
Vincent
Judgment Date21 September 2018
Neutral Citation[2018] HKCA 608
Year2018
Judgement NumberCACV215/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV215/2018 RE NADEEM ASIF

CACV 215/2018

[2018] HKCA 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2018

(ON APPEAL FROM HCAL 868/2017)

------------------------------

RE: NADEEM ASIF Applicant

-------------------------------

Before: Hon Yuen JA and Barma JA in Court
Date of Hearing: 11 September 2018
Date of Judgment: 21 September 2018

___________________

J U D G M E N T

___________________

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

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 1 June 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 28 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Pakistan. He entered Hong Kong in late September 2007 and was arrested by the police on 4 February 2008 for remaining in Hong Kong without permission. After his arrest, he lodged a non-refoulement claim on 16 June 2009.

3. According to the applicant, he was a supporter of the Pakistan People’s Party (“PPP”). In about March 2006, 2 senior members of the PPP (known as AA and MR) asked the applicant to burn down the shops operated by supporters of an opponent party. The applicant refused. AA and MR then beat the applicant with wooden sticks and harassed his family. The applicant fled to Hong Kong.

4. By a Notice of Decision dated 8 August 2014 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 8 December 2014, the Board dismissed the appeal on 20 July 2015.

5. By a Notice of Further Decision dated 6 January 2017 (“Further Decision”), the Director decided against the applicant’s claim based on BOR2[4] risk. The applicant appealed to the Torture Claims Appeal Board. The Board dismissed the appeal on 28 September 2017.

6. In the Board’s Decision dated 8 December 2014, at [39] the Board held that the applicant’s story was not credible. Furthermore, at [9] it held that there was no evidence of the involvement by any state agent. The Board was also satisfied at [20]-[21] that state protection was available for the applicant and at [18] that internal relocation was viable. Accordingly, the applicant’s appeal was dismissed.

The judge’s decision

7. The applicant filed a Form 86 on 11 October 2017. The applicant advanced the following grounds in the Form 86:

“(1) the respondent had unlawfully fettered his discretion by refusing applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in procedurally unfair in manner in dealing with the applicant’s appeal.

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or a result of procedural errors or unfairness.

(4) the Respondent failed to meet the greater care and duty owed to self-represented claimant.”

8. From the particulars given in the Form 86 and the affirmation in support of the leave application dated 11 October 2017, the applicant appears to rely on the following matters:

(1) lack of legal representation in his appeal before the Board and in the Director’s determination of his claim under BOR 2 risk;

(2) lack of legal assistance in his claim under BOR 2 risk and for failing to properly consider his claim or to give proper reason for dismissing his claim; and

(3) lack of oral hearing before the Board and the applicant was not invited to provide written submissions to the Board.

9. 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 grant leave to apply for judicial review. The judge gave the following reasons for refusing such leave at paragraphs 12-16 of the CALL-1 form:

“12. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already had the benefit of legal representation in presenting his case to the Director, and was given an opportunity to testify or to make further representation in his appeal hearing before the Board but had declined to do so. Having failed to submit any additional facts relevant to his claim relevant to BOR 2 risk of which the Board was entitled to consider his claim based on the facts earlier presented by his legal representation to both the Director and the Board, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this...

To continue reading

Request your trial
1 cases
  • Re Nadeem Asif
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 December 2018
    ...(Maria Yuen) (Carlye Chu) (Aarif Barma) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 608 ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT