KASHIF ANWAR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

KASHIF ANWAR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

The court set aside the ex parte dismissal for good explanation of absence but refused leave: judicial review of the Director's decision is not permitted without exceptional circumstances where a statutory appeal to the Board exists; and regarding the Board's decision the Adjudicator acted within discretion, made adequate enquiries and factual findings, and there was no arguable legal error or procedural unfairness so leave to apply for judicial review was refused.

Citation
[2018] HKCFI 2818
Parties
Applicant: Kashif Anwar; 1st Putative Respondent: The Director of Immigration; 2nd Putative Respondent: Ms. Chan Ling (ling Tracy), Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 December 2018
Case Number
HCAL795/2017
Procedural Posture
Judicial Review (leave Application) / Application for Leave; Setting Aside Ex Parte Dismissal; Determination and Refusal of Leave
Outcome
Ex parte dismissal order dated 9 November 2018 set aside; application for leave to apply for judicial review refused; applicant's application dismissed.
Legal Topics
Non Refoulement, Torture Claims, Leave to Apply for Judicial Review, Standard of Review, State Acquiescence, Assessment and Weight of Country Information, Procedural Fairness, Setting Aside Ex Parte Order
Source Language
EN
Immigration Constitutional and Administrative Law Human Rights Refugee and Non Refoulement Law Non Refoulement Torture Claims Leave to Apply for Judicial Review Standard of Review +4 more

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Parties

Kashif Anwar

Applicant

The Director of Immigration

1st Putative Respondent

Ms. Chan Ling (ling Tracy), Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office

2nd Putative Respondent

Procedural Posture

Judicial Review (leave Application) / Application for Leave; Setting Aside Ex Parte Dismissal; Determination and Refusal of Leave

Legal Issues

  1. 1 Whether an applicant may seek judicial review of the Director of Immigration's decision absent exceptional circumstances
  2. 2 Whether the Board's Adjudicator erred in law or breached procedural fairness in rejecting the non-refoulement/torture claim
  3. 3 Whether the Adjudicator failed to properly assess or give weight to state acquiescence and relevant country information

Ratio Decidendi

The court set aside the ex parte dismissal for good explanation of absence but refused leave: judicial review of the Director's decision is not permitted without exceptional circumstances where a statutory appeal to the Board exists; and regarding the Board's decision the Adjudicator acted within discretion, made adequate enquiries and factual findings, and there was no arguable legal error or procedural unfairness so leave to apply for judicial review was refused.

Court Disposition

Ex parte dismissal order dated 9 November 2018 set aside; application for leave to apply for judicial review refused; applicant's application dismissed.

Orders

  • Order dated 9 November 2018 dismissing the application for want of prosecution set aside.
  • Leave to apply for judicial review refused in respect of the Board's decision.