Khan Kamran v. Chan Pik-kiu, Michael, Esq, Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 426/2018

[2019] HKCFI 2297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 426 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 1 October 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party Pakistan Peoples Party (“PPP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Magribee Asghar, Tehsil Hazro, District Attock, Pakistan.  After leaving school he worked as a farmer in his family’s farmland in his home village, and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”), regularly attended their local activities.

3.As PPP was then the ruling party, some of their local supporters would frequently approach the applicant to invite him to join their party, but the applicant always refused their invitation as he was a stern supporter of PML(N).

4.One day in 2011 after the applicant again refused to join PPP, he was assaulted by a group of PPP supporters but managed to flee from the scene to take shelter at his friend’s home.  On the same evening he was informed by his brother that the same group of PPP supporters had come to his home looking for him with threats to kill him, and was advised by his brother to stay away from his home.

5.As a result the applicant fled to Islamabad to take shelter at another friend’s place where he stayed for more than two years without incidents, but one day in August 2013 when he saw the same group of PPP supporters in Islamabad, he suspected that they had come looking for him and decided it was no longer safe to remain in Pakistan, and so on 26 September 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 6 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 22 March 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim 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 the Hong Kong Bill of Rights (“HKBOR”) (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those local PPP supporters to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was issue over his credibility as to his claim of being a supporter of PML(N), that in any event in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi, Lahore or Islamabad where he had stayed before without much incidents and where it would be difficult if not impossible for those PPP supporters to locate him.

8.On 26 July 2016 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as his notice of appeal was filed after the expiration of the 14-day period stipulated under section 37ZS(1) of the Immigration Ordinance, the Board therefore decided as a preliminary decision without a hearing under section 37ZT(2) of the Ordinance whether to allow the late filing of his notice of appeal,and on 23 March 2017 it found no good reason for his serious delay of more than 15 weeks and refused his late filing upon being satisfied that there was no special circumstances which would make it unjust not to allow the late filing of his notice of appeal.

9.On 28 July 2017 the applicant filed his Form 86 under HCAL 466/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.On 13 March 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of his grounds reasonably arguable, that there was no error of law or procedure in the Board’s decision or in his appeal process, and that there was no realistic prospect of success in his intended challenge.

11.The applicant did not appeal against the Court’s decision, but instead on 16 March 2018 filed another Form 86 again for leave to apply for judicial review of the Board’s decision, and put forward essentially the same grounds as before in his previous application and which had all been found by the Court as not reasonably arguable for his intended challenge.

12.Clearly the principle of res judicata applies, and it is an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court under HCAL 466/2017,and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

13.In the premises and accordingly this second leave application for judicial review of the Board’s decision by the applicant is hereby struck out and dismissed.

Dated the 25^th day of September 2019.

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

Form CALL-1