Ahmed Jafar v. Torture Claims Appeal Board
Read the full judgment text of HCAL 840/2017 on BabelCite. This High Court CFI judgment was delivered on 29 June 2018.
1. The applicant is a 29-year-old national of India who arrived in Hong Kong on 7 July 2013 with permission to remain as a visitor up to 14 July 2013, but he did not depart and instead overstayed until 18 September 2013 when he was arrested by the police. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim that if he returned to India he would be harmed or killed by a loan shark for failing to repay his debts.
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HCAL 840/2017 [2018] HKCFI 1439 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 840 of 2017
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review dismissed. Observations for the Applicant: 1.The applicant is a 29-year-old national of India who arrived in Hong Kong on 7 July 2013 with permission to remain as a visitor up to 14 July 2013, but he did not depart and instead overstayed until 18 September 2013 when he was arrested by the police. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim that if he returned to India he would be harmed or killed by a loan shark for failing to repay his debts. 2.On 29 January 2016 his claim was rejected by the Director of Immigration (“the Director”) on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). 3.By a Notice of Further Decision dated 5 January 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”). 4.On 17 March 2017 the applicant’s appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“the Board”) which also confirmed the Director’s decisions. 5.On 13 April 2017 the applicant filed his Form 86 under HCAL 137/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, but his leave application was refused by Anthony Chan J on 7 July 2017 for the reasons that his grounds were generalized complaints without proper particulars, that he was found to be an unreliable witness by the Board, and that there was no reasonably arguable case from the materials before the court. 6.However, four months later on 3 November 2017 the applicant filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and with similar generalized complaints as before essentially that the Board was being unfair and unreasonable and for failing to apply high standard of fairness in dismissing his appeal. 7.The only discernable difference is that on this occasion he raised a new complaint of being given the hearing bundle by the Director just six days before his appeal hearing before the Board with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal without the benefit of legal representation, a complaint which he could have raised but did not in his appeal before the Board, or included as part of his grounds for judicial review before His Lordship in the earlier proceedings but again he did not, nor did he provide any explanation for these omissions either in his supporting affirmation in his application now before me or at the oral hearing when he chose not to attend despite having requested for one in his Form 86. 8.Even if indeed the hearing bundle was given to him only a few days before his appeal hearing before the Board, the fact that he never raised the complaint at his appeal hearing, and that in any event it cannot be disputed that he should already be well familiar with most of the documents such as his own NCF, records of his screening interviews and the Director’s decisions all of which were made available to him when he still had the benefit of legal representation, it is therefore my firm view that had he included this complaint in his grounds for judicial review in the earlier proceedings, it would not have assisted him or advanced his case any further for the reasons given. 9.In the premises I find this second leave application of the applicant for judicial review a blatant abuse of the court process, and with his earlier application under HCAL 137/2017 already dealt with and dismissed, and applying the principle of res judicata I accordingly dismiss this application of the applicant. Dated the 29th day of June 2018.
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
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