Mohammed Firoz Khan v. Torture Claims Appeal Board

HCAL 125/2021

[2021] HKCFI 1643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 125 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;  or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 47-year-old national of India who arrived in Hong Kong on 2 June 2007 with permission to stay as a visitor up to 16 June 2007 when he did not depart and instead overstayed and was arrested by the police on 13 February 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.     

2.By a Notice of Decision dated 26 September 2014 the Director of Immigration (“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 Ordinance, Cap 383 (“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 his creditor upon his return to India as low due to the low intensity and frequency of past ill-treatment from his creditor, that it was a private monetary dispute between them 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”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

4.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 27 April 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 June 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

5.On 8 July 2015 the Applicant filed a Form 86 under HCAL 123/2015 for leave to apply for judicial review of the Board’s decision, but his application was refused by Li J on 23 September 2016 upon finding his claim not reasonably arguable and with no realistic prospect of success in his intended application, and against which the Applicant never brought any appeal.  

6.On 28 December 2016 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim based on any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and by a Notice of Further Decision dated 13 January 2017 the Director also rejected his BOR 2 claim.

7.The Applicant again lodged an appeal to the Board against the Director’s further decision, and on 6 November 2017 his appeal was also dismissed by the Board upon finding that his claim even on his own case did not engage the BOR 2 ground.  

8.On 13 November 2017 the Applicant filed a Form 86 under HCAL 877/2017 before me for leave to apply for judicial review of that second decision of the Board, and put forward the same grounds as in his previous application under HCAL 123/2015 for his intended challenge.

9.Upon hearing the Applicant’s oral submissions and upon finding no error of law or procedural unfairness in his process before the Board or in its decision with no prospect of success in his intended challenge, I refused his leave application on 21 September 2018.

10.The Applicant then brought an appeal to the Court of Appeal against that decision under CACV 473/2018, but his appeal was dismissed by the Court of Appeal on 28 February 2019. 

11.Almost 2 year later on 4 February 2021 the Applicant filed a third Form 86 for leave to apply for judicial review but failed to clearly identify exactly which decision that he is seeking to judicial review, while in his supporting affirmation of the same date he just stated that he wants to apply for judicial review again as his life is still in danger in his home country.

12.Given the history of the proceedings regarding the Applicant’s non-refoulement claim, clearly the principle of res judicata applies to this third application of his for judicial review, and that it is an abuse of process for the Applicant to re-litigate his case by bringing a second judicial review in respect of whichever decision of the Board after he failed to obtain leave either under HCAL 123/2015 or HCAL 877/2017, and also for failing to inform the Registry of the same when he filed his Form 86 for the third time and issued his ex-parte application in these proceedings, resulting in much judicial and public resources being wasted in processing this application.

13.In the premises and for the reasons given, this second leave application for judicial review of either decision of the Board by the Applicant is hereby struck out and dismissed.

Dated the 8^th day of June 2021

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