AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 376/2018

[2021] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 376 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 oral submissions by the Applicant in open court;

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

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of India who last arrived in Hong Kong on 5 August 2015 as a visitor with permission to remain up to 19 August 2015 when he did not depart and instead overstayed, and on 20 August 2015 he surrendered to the Immigration Department and subsequently raised 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 15 June 2016 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 found numerous inconsistencies and discrepancies in his evidence that the credibility of his claim was found doubtful, that in any event 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”) 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 young man with working experience to move to other parts of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his creditor to locate him.

4.  By a Notice of Further Decision dated 21 April 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 in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 28 June 2016, and for which he attended an oral hearing on 26 April 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 21 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

6.  On 28 June 2017 the Applicant filed a Form 86 under HCAL 335/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward some broad and vague grounds but without any particulars or elaborations for his intended challenge, and for which he also failed to attend the scheduled hearing before me without any explanation.

7.  Having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I did not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim, and accordingly on 29 March 2018 I refused his leave application.

8.  On 11 May 2018 the Applicant sought leave from the Court of Appeal under CAMP 62/2018 to appeal against that decision out of time, and on 6 September 2018 his application was refused upon finding no prospect of success in his intended appeal.

9.  Meanwhile the Applicant on 8 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 similar grounds for his intended application, and at the hearing he simply repeated his claim that he cannot return to his home country as his problem still exists.  

10.  In the circumstances, surely the principle of res judicata applies in this second application, and that it is an abuse of process for the Applicant to re-litigate his case by bringing a second judicial review of the same decision of the Board after his previous application under HCAL 335/2017 had been refused by this Court and that his subsequent application for leave to appeal out of time was also refused by the Court of Appeal, and also for his 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. 

11.  For these reasons 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