AH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

AH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

The Director and adjudicator applied an incorrect legal test by imposing an additional Article 33 hurdle beyond the Article 1A(2) definition; the Director's determination must be quashed and the claim rescreened afresh under the corrected legal test; costs are appropriate against the Department of Justice for...

Source-derived case information.

Citation
[2018] HKCFI 377
Parties
Applicant: AH; 1st Putative Respondent: TORTURE CLAIMS APPEAL BOARD; 2nd Putative Respondent: THE DIRECTOR OF IMMIGRATION
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 March 2018
Case Number
HCAL34/2016
Procedural Posture
Judicial Review Non Refoulement Claim Under the Unified Screening Mechanism / Leave Granted; Substantive Hearing Listed; Consent Order Agreed at Hearing; Costs Ordered Against Department of Justice
Outcome
Consent order agreed in favour of applicant; Director to reconsider the claim afresh under corrected legal test; costs awarded to applicant against the Department of Justice.
Legal Topics
Non Refoulement, Refugee Definition (article 1 A(2)), Unified Screening Mechanism (usm), Judicial Review, Costs
Source Language
en
Immigration Administrative Law Constitutional Law Refugee Law Non Refoulement Refugee Definition (article 1 A(2)) Unified Screening Mechanism (usm) Judicial Review +1 more

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Summary, issues, holding and outcome

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Parties

AH

Applicant

TORTURE CLAIMS APPEAL BOARD

1st Putative Respondent

THE DIRECTOR OF IMMIGRATION

2nd Putative Respondent

Procedural Posture

Judicial Review Non Refoulement Claim Under the Unified Screening Mechanism / Leave Granted; Substantive Hearing Listed; Consent Order Agreed at Hearing; Costs Ordered Against Department of Justice

Legal Issues

  1. 1 Whether the Director and Adjudicator applied an incorrect legal test by imposing an additional Article 33 hurdle beyond Article 1A(2)
  2. 2 Whether a person who meets Article 1A(2) of the 1951 Refugee Convention is entitled to non-refoulement protection
  3. 3 Whether the Director's decision must be quashed and the claim rescreened ab initio under the corrected test

Ratio Decidendi

The Director and adjudicator applied an incorrect legal test by imposing an additional Article 33 hurdle beyond the Article 1A(2) definition; the Director's determination must be quashed and the claim rescreened afresh under the corrected legal test; costs are appropriate against the Department of Justice for inordinate delay.

Court Disposition

Consent order agreed in favour of applicant; Director to reconsider the claim afresh under corrected legal test; costs awarded to applicant against the Department of Justice.

Orders

  • Quash the Director's BOR2 determination and remit the applicant's non-refoulement claim for full rescreening ab initio under the correct legal test.
  • Costs awarded to the applicant against the Department of Justice.