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

HCAL 235/2018

[2020] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 235 of 2018

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 54-year-old national of Pakistan who entered Hong Kong illegally on 21 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 supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Daudi Arain, District Gujrat, Punjab,Pakistan. After leaving school he worked as a carpenter, got married and supported PML(N)until 2011 when he left to join rival party Pakistan Tehreek-e-Insaf (“PTI”).

3.During the general elections in May 2013, the Applicant and his fellow PTI supporters noticed that some PML(N) supporters were trying to cheat in their voting which led to a violent confrontation between the two groups until the police intervened.

4.After PML(N) won the election, some of their supporters started to harass the Applicant and had on two occasions threatened and assaulted him on the street slapping and pushing and hitting him with wooden sticks.

5.In order to avoid their harassments and threats the Applicant on 8 October 2013 departed Pakistan for China, and from there he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 14 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 28 October 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 PML(N) 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 is no reliable evidence that he had been specifically targeted by the PML(N) people, 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 201 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 partof Pakistan away from his home district in large cities such as Karachi, Islamabad or Lahore where it would be difficult if not impossible for those PML(N) people to locate him.

8.On 4 November 2016 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 11 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 June 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.On 4 July 2017 the Applicant filed his Form 86 under HCAL 356/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) no reasonable basis for rejecting his claim on credibility;

(2) failure to fully consider the extended form of state acquiescence;

(3) failure to fully consider the COI reports in assessing risk to him if refouled; and

(4) no proper basis for its consideration of internal relocation.

10.The Applicant however failed to attend the hearing of his leave application without any explanation, and on 22 December 2017 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 procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in his intended application.

11.The Applicant did not lodge any appeal against that decision, but instead on 13 February 2018 filed another Form 86 again for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward some nine grounds for his intended challenge but on close examination are essentially the same or similar grounds as before in his previous application that were all found not reasonably arguable.  

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 in HCAL356/2017, and also for failing to disclose to 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 23^rd day of June 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