MOHAMMAD FIROJ AND OTHERS v. TORTURE CLAIMS APPEAL BOARD Application for Leave to Apply for Judicial Review [Decision on Leave Application]

bjbj HCAL 232/2017 [2018] HKCFI 66 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.232 of 2017 BETWEEN MOHAMMAD FIROJ 1st Applicant NESSA MEHRUN 2nd Applicant FALAK FIROJ (minor), by her Mother and next friend NESSA MEHRUN 3rd Applicant BUSHRA FIROJ (minor), by her Mother and next friend NESSA MEHRUN 4th Applicant TORTURE CLAIMS APPEAL BOARD and Putative Respondent DIRECTOR OF IMMIGRATION Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge s decision (Ord. 53 r. 3) Following : consideration of the documents only; or e 1st and 2nd applicants are husband and wife and the 3rd and 4th applicants are their children. A1 came to Hong Kong on 18 March 2008 as a visitor but stayed on illegally after his visa expired. Two weeks later he was arrested for illegal remaining by the police on 8 April 2008. He lodged his torture claim on 19 April 2008 and later a non refoulement claim under the USM. Whilst on Immigration recognizance, A1 committed Blackmail and Criminal Intimidation and was sentenced to 14 months imprisonment. It was after his release from prison that A2, A3 and A4 came to Hong Kong on 9 April 2014, initially on the strength of visas but overstayed thereafter. Afterwards they surrendered to the Immigration Department and raised non refoulement claim. By a Notice of Decision dated 24 December 2015, their claims were refused by the Director of Immigration. On 5 January 2017 they lodged an appeal to the Board, the appeal was heard on 9 March 2017 and dismissed on 21 April 2017. The applicants applied for leave for judicial review on 24 May 2017. Their legal aid applications were refused on 9 October 2017. At the outset of the application for leave hearing A1 handed up a Notice of Appeal dated 13 December 2017 against the decision of the Director of Legal Aid. I ruled against any further adjournments and proceeded with the hearing. Allegations made by the Applicants A1, who spoke on behalf of the other applicants, adopted contents of the Form 86 and the Affirmations. Apart from raising discontent as to the refusal of his claim by both the Director and the Board, he told the court that on 25 January 2017 he learned that Amin had abducted A2 s parents, in an attempt to show the risks that he and his family would safe should they return to India. He also complained about procedural irregularities in his Affirmation affirmed dated 24 May 2017, namely, that: They were only informed of the appeal hearing one week in advance with an intervening weekend, which left them insufficient time to prepare for the hearing especially in view of their limited language skills and lack of legal representation, and causing them to handicapped at the hearing before the Board. That the Board wrongful relied on unconfirmed sources of news to their disadvantage. Therefore, he asked for an order of Certiorari that the decisions of the Board and the Director be set aside. Consideration of the application The Adjudicator was alive to the issue of the alleged abduction of A2 s parents. (Decision para 4.1) This was considered together with the other evidence of A1. After assessing his evidence, the Adjudicator found him dishonest and unreliable. (para 4.6) Whilst the applicants complained about the insufficiency of time and assistance to prepare for his appeal, they attended and indeed participated in the hearing before the Adjudicator. According to paragraph 4.1 of the Decision, A1 spoke for himself and on behalf of A2 and the children. He understood his rights and he decided to answer questions by the Adjudicator. Further, according to paragraph 18 of the Decision, the Adjudicator had put the relevant COI and the implications to A1 and taken into account the comments that he had to make. The adjudicator was entitled to come to the conclusion as he did. It is clear from the Form 86 and the Affirmation filed for the purpose of this leave application, and indeed what he told the court at the hearing about a friend helped him to compile these clearly shows that the applicants must have access to and was able to seek the necessary advice and assistance that was required. The claim had been thoroughly canvassed and assessed by reference to the applicable laws and principles. Conclusion I do not find that there was any procedural irregularities or unfairness which failed to meet the high standard of fairness, or that the rights of the applicants had been compromised. In my judgment, the applicant failed to show that his grounds of judicial review are reasonably arguable with a realistic prospect of success . The application for leave to apply for judicial review is therefore refused. Dated the 22nd day of January 2018. (S.Y. YEUNG)(Ms) for Registrar, High Court Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent s evidence Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); Sent/Handed to the Applicant/ Solicitors for the applicant on 22 January 2018 Sent/Handed to the Putative Respondent/ the Putative Respondent s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties solicitors on 22 January 2018 Torture Claims Appeal Board (Putative Respondent) Ref. No. : USM 2896/16/1/19/IN653, USM 2897/16/1/20/IN654, USM 2898/16/1/21/IN655, & USM 2899/16/1/22/IN656 Director of Immigration (Putative Interested Party) Ref. No. : RBCZ 878/08, RBCZ 3001222-/14(T7S9) b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). 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