Younas Waqar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 477/2018

[2020] HKCFI 1588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 477 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 28-year-old national of Pakistan who entered Hong Kong illegally on 8 January 2016 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 his cousin over their business dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Yaseen Kalan, Tehsil Hazro, DistrictAttock, Pakistan.  After leaving school, in 2014 he started a business with his cousin selling mobile phones in a shop in Rawalpindi.

3.In 2015 the Applicant suspected that his cousin who had control of their business accounts had been stealing money from the business, but when he confronted his cousin,it led to a heated argument and his cousin then demanded to dissolve their partnership but would not give him any money, to which the Applicant refused.

4.For the next several months the two of them became embroiled in their disputes over their business, and one morning in late 2015 when the Applicant came to work in the shop, his cousin together with several men claimed that he no longer had any interest in the business and therefore had no right to work in the shop, and when the Applicant refusedto leave, they beat him and drove him away, threatening to kill him if he dared to return or to make any further claim over the business.

5.Fearing for his life, the Applicant fled his home and took shelter at his friend’s place where he was advised to leave Pakistan to save his life, and so in January 2016 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 4 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 30 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC 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 his cousin upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that his cousin merely wanted to take over their partnership business without any real intention to harm or kill him, that their problems were private financial dispute without 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 196 million people spread across a vast territory of more than 796,000 squarekilometers that it would not be unduly harsh for the Applicant as an able-bodied young manwith work experience to move to other part of Pakistan away from his home district in large cities such as Islamabad, Karachi or Lahore where it would be difficult if not impossible for his cousin to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on14 February 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 April 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.On 6 July 2017 the Applicant filed his Form 86 under HCAL 366/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that there was no reasonable basis for rejecting the credibility of his claim;

(2) that there was failure to consider the extended form of state acquiescence;

(3) that there was failure to fully consider the COI reports in assessing risk to the Applicant; and

(4) that there was no proper basis for consideration of internal relocation as he risks death if returned to his home country.  

10.On 13 March 2018 his application was refused by Deputy Judge Woodcock upon finding none of his grounds reasonably arguable, 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 realistic prospect of success in his intended application.

11.The Applicant did not lodge any appeal against that decision, but instead on 23 March 2018 filed another Form 86 in these proceedings for leave to apply for judicial review again of the Board’s decision, and put forward essentially similar grounds as before for his intended application.

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 366/2017 of which he never brought any appeal, and that it was also an abuse of process when he failed to disclose his previous application to the Registry 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 for the reasons given, this second application of the Applicant for leave to apply for judicial review of the same decision of the Board is hereby struck out and dismissed.

Dated the 28^th day of July 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