AWAIS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

AWAIS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

Leave was refused because the applicant’s grounds were not reasonably arguable: lack of representation at the Board did not amount to unfairness given prior representation and his capacity to give evidence; the Director properly considered relevant COI; the Director invited further submissions on BOR 2 by letter and was entitled to decide after no response; the Board’s findings on absence of specific targeting and availability of internal relocation were open to it; consequently there was no error of law or procedural unfairness and no prospect of success on judicial review.

Citation
[2018] HKCFI 1595
Parties
Applicant: Awais Muhammad; 1st Putative Respondent: Torture Claims Appeal Board/Non-Refoulement Claims Petition Office; 2nd Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 September 2018
Case Number
HCAL1012/2017
Procedural Posture
Application for Leave to Apply for Judicial Review (immigration/non Refoulement) / Leave Application Refused (decision on Consideration of Documents and Oral Submissions)
Outcome
Leave to apply for judicial review refused
Legal Topics
Non Refoulement, Torture Risk (part VIIC, Immigration Ordinance), Article 3 HKBOR (cruel, Inhuman or Degrading Treatment), Article 2 HKBOR (right to Life), Refugee Convention Article 33 (non Refoulement/persecution), Procedural Fairness, Legal Representation, Country of Origin Information, Internal Relocation
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Law Non Refoulement Torture Risk (part Viic, Immigration Ordinance) Article 3 HKBOR (cruel, Inhuman or Degrading Treatment) Article 2 HKBOR (right to Life) +5 more

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Parties

Awais Muhammad

Applicant

Torture Claims Appeal Board/Non-Refoulement Claims Petition Office

1st Putative Respondent

Director of Immigration

2nd Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review (immigration/non Refoulement) / Leave Application Refused (decision on Consideration of Documents and Oral Submissions)

Legal Issues

  1. 1 Whether applicant was denied a fair hearing by lack of legal representation at appeal to the Board
  2. 2 Whether the Director irrationally or improperly relied on Country of Origin Information in rejecting the non-refoulement claim
  3. 3 Whether the Director failed to afford procedural fairness by not ensuring the applicant received an invitation to submit further facts on BOR 2 risk

Ratio Decidendi

Leave was refused because the applicant’s grounds were not reasonably arguable: lack of representation at the Board did not amount to unfairness given prior representation and his capacity to give evidence; the Director properly considered relevant COI; the Director invited further submissions on BOR 2 by letter and was entitled to decide after no response; the Board’s findings on absence of specific targeting and availability of internal relocation were open to it; consequently there was no error of law or procedural unfairness and no prospect of success on judicial review.

Court Disposition

Leave to apply for judicial review refused

Orders

  • Leave to apply for judicial review refused