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

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

Because the Board is the statutory forum with wider investigatory powers, the applicant must show exceptional circumstances to challenge the Director's decision by judicial review; the applicant failed to demonstrate such circumstances, failed to show procedural unfairness that would vitiate the Board's hearing, and failed to rebut the Adjudicator's adverse credibility findings, therefore leave to apply for judicial review is refused.

Citation
[2019] HKCFI 625
Parties
Applicant: Khan Md Omar; 1st Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; 2nd Putative Respondent: The Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 March 2019
Case Number
HCAL1649/2018
Procedural Posture
Application for Leave for Judicial Review / Leave Application (refused)
Outcome
Application for leave for judicial review dismissed; leave refused
Legal Topics
Non Refoulement, Torture and CIDTP (article 3 Bor), Right to Life (article 2 Bor), Credibility Findings, Procedural Fairness, Leave to Apply for Judicial Review, Legal Representation, Screening Interview
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Law Refugee Law Non Refoulement Torture and CIDTP (article 3 Bor) Right to Life (article 2 Bor) +5 more

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Parties

Khan Md Omar

Applicant

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

1st Putative Respondent

The Director of Immigration

2nd Putative Respondent

Procedural Posture

Application for Leave for Judicial Review / Leave Application (refused)

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 wider investigatory powers preclude leave for judicial review of the Director's decision
  3. 3 Whether procedural irregularities (screening interview, language assistance, hearing bundle translation) entitled the applicant to relief

Ratio Decidendi

Because the Board is the statutory forum with wider investigatory powers, the applicant must show exceptional circumstances to challenge the Director's decision by judicial review; the applicant failed to demonstrate such circumstances, failed to show procedural unfairness that would vitiate the Board's hearing, and failed to rebut the Adjudicator's adverse credibility findings, therefore leave to apply for judicial review is refused.

Court Disposition

Application for leave for judicial review dismissed; leave refused

Orders

  • Leave to apply for judicial review of the Director of Immigration's decision is refused.
  • Leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office decision is refused and the applicant's application is dismissed.