MOHAMMED EKBAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 38/2018

[2019] HKCFI 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 38 of 2018

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;

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 20 July 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.  The applicant is a 45-year-old national of India who last entered Hong Kong illegally on 21 August 2015 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 India he would be harmed or killed by supporters of rival political party Communist Party of India (Marxist) (“CPI(M)”).  He was subsequently released on recognizance pending the determination of his claim.     

2.  By a Notice of Decision dated 15 April 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.  By a Notice of Further Decision dated 9 June 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”).

4.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 29 April 2016, and for which he attended an oral hearing on 21 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.  On 25 July 2017 the applicant filed his Form 86 in HCAL 450/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the hearing bundle was provided to him only a few days before his appeal hearing with the majority of the documents in English without translation giving him insufficient time to prepare for his appeal; and

(6)  that the Board had significantly relied on the source of news not officially recognized or was simply hearsay or outdated resulting in groundless speculations that it was safe for him to return to his home country.  

6.  On 30 April 2018 his 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.

7.  The applicant then filed an appeal against that decision, and on 18 October 2018 his appeal was dismissed by the Court of Appeal upon holding that the learned judge was correct to refuse to grant leave to him for judicial review of the Board’s decision, and on 18 January 2019 the Court of Appeal also dismissed his subsequent notice of motion for leave to appeal to the Court of Final Appeal. 

8.  Meanwhile and notwithstanding all these, the applicant on 8 January 2018 filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision essentially on similar grounds for his intended application.

9.  Surely the principle of res judicata applies, and it is clearly 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 HCAL 450/2017 and despite the Court of Appeal’s subsequent decision upholding the refusal of his leave application, 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.

10.  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.

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