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Re Qadir Sher

Judgment Cited in 130 Precedent Map Related
Vincent
Judgment Date16 March 2018
Neutral Citation[2018] HKCA 160
Year2018
Judgement NumberCACV242/2017
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV242/2017 RE QADIR SHER

CACV 242/2017

[2018] HKCA 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2017

(ON APPEAL FROM HCAL 341/2017)

________________

QADIR SHER Applicant

________________

Before: Hon Cheung CJHC and Hon Lam VP in Court

Date of Hearing: 13 March 2018

Date of Judgment: 16 March 2018

_________________

J U D G M E N T

_________________

Hon Cheung CJHC (giving the judgment of the court):

1. This is an appeal from the decision of Deputy High Court Judge Woodcock on 20 October 2017 refusing leave to the applicant (wrongly entitled the “plaintiff” in the notice of appeal) to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong from the Mainland illegally on 15 June 2009. He was arrested on the same day. He lodged his non‑refoulement claim[1] on 18 June 2009. His claim was based on his fear of being harmed or killed by three customers with whom he had a fight over some political issues when he worked as a waiter at a restaurant.

2. The Director of Immigration rejected the claim on 30 July 2015. The director considered that the alleged fear of ill treatment would not likely materialise. The availability of state protection and the possibility of relocation would also lower the perceived risk of harm. The decision also covered the BOR 3 risk, the persecution risk, and the torture risk.[2]

3. By a supplemental decision of 9 June 2017, the director also assessed the applicant’s BOR 2 risk[3] and decided it against him. (Notwithstanding that the supplemental decision was not the subject of the application for leave to apply for judicial review, the deputy judge dealt with the BOR 2 risk at paragraph 19 of the CALL‑1 form.)

4. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 2 June 2016, the board dismissed the appeal on 29 March 2017.

5. The intended judicial review was in respect of the board’s decision. The form 86 filed by the applicant on 28 June 2017 did not contain any grounds for seeking relief. In the supporting affirmation dated 28 June 2017, 8 grounds were relied on:

(a) the adjudicator comprising the board failed to carry out sufficient research and inquiry into the COI[4];

(b) The adjudicator failed to take into account the relevant information on the COI and had cherry-picked, took into account, and put weight on such COI information that was of little or no relevance;

(c) The adjudicator failed to make a finding that Pakistan has a consistent pattern of gross and flagrant violation of human rights;

(d) The adjudicator failed to make an accurate assessment of state protection in Pakistan;

(e) The adjudicator failed to take into account facts that were in favour of the applicant;

(f) The adjudicator failed to call for psychological and psychiatric reports;

(g) The adjudicator applied the wrong standard of proof;

(h) The assigned duty lawyer failed the applicant at the first instance before the director.

6. The applicant also complained that the hearing bundle was in English and was only given to him a few days prior to the hearing, leaving him with insufficient time to prepare.

7. After summarising the facts and background of the case and considering the decision of the board, the deputy judge gave the following reasons in refusing leave at paragraphs 20 to 26 of the CALL-1 form:

“20. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

21. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

22. It is submitted the adjudicator failed to consider relevant and up-to-date COI information, cherry picked information or failed to properly enquire at all. The adjudicator made proper reference to material he relied on and referred to in the hearing bundle. He stated the source and its relevance. I find it more than sufficient, there is no substance to this ground.

23. The applicant relies on a procedural impropriety/unfairness ground in that his assigned duty lawyer failed him in the hearing, at first instance before the...

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130 cases
  • Re Shrestha Santosh Kumar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 6 September 2018
    ...are errors of law or procedural unfairness or irrationality in the decision of the Board, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; RE Lakhwinder Singh [2......
  • Re Waryam Singh
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 September 2018
    ...are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [20......
  • Re Nadeem Asif
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 21 September 2018
    ...are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [20......
  • Re Akhtar Kamran
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 September 2018
    ...are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [20......
    • Request a trial to view additional results

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