Nouman Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 578/2018

[2020] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 578 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:

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 illegallyon 3 January 2014 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 some local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) over political disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.By a Notice of Decision dated 29 February 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”).

3.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 PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from, that in the absence of any 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 where it would be difficult if not impossible for those PML(N) supporters to locate him.

4.By a Notice of Further Decision dated 6 February 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”).

5.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 March 2016, and for which he attended an oral hearing on 6 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.On 17 July 2017 the Applicant filed his Form 86 under HCAL 412/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds of procedural unfairness and incorrect reliance of COI on the part of the Board for his intended challenge.

7.On 29 March 2018 his leave application was refused by Deputy High Court Judge Woodcock after hearing him and upon finding none of his grounds reasonably arguable forhis intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in the Board’s decision, and that there was no prospect of success in his intended application.

8.The Applicant did not lodge any appeal against that decision, but instead on 9 April 2018 filed another Form 86 again for leave to apply for judicial review of the Board’s decision, and put forward essentially similar grounds of procedural impropriety and irrationality in the Board’s decision as before in his previous application which had all been found not reasonably arguable.

9.Clearly the principle of res judicata applies in this second application of the Applicant, and it is an abuse of process for him 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 in HCAL 412/2017, 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. 

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

Dated the 25^th day of May 2020.

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