MAJID RASHEED BUTT v. DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

MAJID RASHEED BUTT v. DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

Leave to apply for judicial review was granted because the Adjudicator applied the wrong legal test for non-refoulement (the old two-limb approach) contrary to the clarification following HCAL 16/2016 which holds that establishing persecution under Article 1A(2) suffices for non-refoulement; leave was allowed despite delay on the applicant's explained grounds.

Citation
[2018] HKCFI 2519
Parties
Applicant: Majid Rasheed Butt; 1st Respondent: Director of Immigration; 2nd Respondent: Gerard Paul Muttrie / Torture Claims Appeal Board / NCPO
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 November 2018
Case Number
HCAL257/2015
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Granted
Outcome
Leave to apply for judicial review granted
Legal Topics
Non Refoulement, Torture, Persecution, Cruel, Inhuman or Degrading Treatment or Punishment (cidtp), Unified Screening Mechanism (usm), Delay/extension of Time, Judicial Review
Source Language
EN
Constitutional and Administrative Law Immigration Law Refugee Law Human Rights Law Non Refoulement Torture Persecution Cruel, Inhuman or Degrading Treatment or Punishment (cidtp) +3 more

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Parties

Majid Rasheed Butt

Applicant

Director of Immigration

1st Respondent

Gerard Paul Muttrie / Torture Claims Appeal Board / NCPO

2nd Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Granted

Legal Issues

  1. 1 Whether the applicant faces a real risk of torture if returned to Pakistan
  2. 2 Whether the applicant faces a real risk of persecution or CIDTP and is entitled to non-refoulement protection
  3. 3 Whether the Adjudicator applied the correct legal test for refugee status/non-refoulement and whether leave should be granted despite delay

Ratio Decidendi

Leave to apply for judicial review was granted because the Adjudicator applied the wrong legal test for non-refoulement (the old two-limb approach) contrary to the clarification following HCAL 16/2016 which holds that establishing persecution under Article 1A(2) suffices for non-refoulement; leave was allowed despite delay on the applicant's explained grounds.

Court Disposition

Leave to apply for judicial review granted

Orders

  • Leave to apply for judicial review granted
  • Applicant to serve the order granting leave and any directions on the respondent and interested parties within 14 days (Order 53, rule 4A)