BRAR JASPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 322/2021

[2021] HKCFI 2171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 322 of 2021

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 38-year-old national of India who arrived in Hong Kong on 27 June 2014 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute in his home district.   

2.  By a Notice of Decision dated 16 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family land 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”) show 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 part 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.  On 29 September 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 December 2014 before the Board with his lawyer from DLS during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 3 February 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

5.  One year later on 3 February 2016 the Applicant through his solicitors assigned by Legal Aid Department filed a Form 86 under HCAL 37/2016 for leave to apply for judicial review of the Board’s decision and for extension of time to do so.

6.  On 26 July 2017 upon hearing counsel for the Applicant Hon Lok J found no basis for the Applicant to challenge the factual findings of the Board and dismissed both his leave application and time-extension application. The Applicant never brought any appeal to the Court of Appeal against that decision.    

7.  Meanwhile on 23 December 2016 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 10 January 2017 rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

8.  The Applicant did not bring any appeal to the Board against the Director’s Further Decision, and instead on 10 March 2021, almost 4 years after his leave application issued under HCAL 37/2016 had been dismissed by Hon Lok J, the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he merely repeated his claim of fear of harm from his uncle over their land dispute, and at the hearing of his application before me when it was pointed out to him that his leave application had earlier already been dealt with by another Court and that he has no right to make the same application again without any arguable basis, he just stated that he cannot go back to his home country as he now has a family here in Hong Kong.

9.  It is well settled that it is an abuse of process for an applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board: see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763; Re Mamun Mohammad Tuhin Al [2018] HKCA 442; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571.

10.  Furthermore, in Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal in addition to finding that it is an abuse of process for an applicant to file a second application seeking judicial review in respect of the same Board’s decision, also held that it is a breach of the duty of full and frank disclosure when such ex-parte application was made without disclosing to the Registry that there had been a previous unsuccessful application for leave for judicial review of the same decision of the Board, thus wasting public resources in processing the second application.  

11.  As the Applicant in his present application has no arguable basis for making a second attempt in judicial review against the same decision of the Board to which clearly the principle of res judicata applies, and as he had also failed to make proper disclosure to the Registry when he filed his Form 86, this second application of the Applicant is clearly an abuse of process and must be struck out.

12.  Even if the Applicant had instead intended to challenge the subsequent Further Decision of the Director, whom he had named as a proposed respondent in his second Form 86, he should have done so by first appealing to the Board, as the Court of Appeal held in Re Moshsin Ali [2018] HKCA 549 where it examined the two-tier process for screening non-refoulement claims first by the Director and followed by review by the Board, and that as a result the Board’s decision supersedes the Director’s decision and represents the final decision on the claim at the end of the process, and hence the decision of the Director is not a decision within the administrative structure which is susceptible to judicial review until an appeal to the Board has been pursued by a claimant, but which has never been done by the Applicant in the present case.      

13.  In the premises and for the reasons given, I accordingly struck out and dismiss this second leave application of the Applicant in respect of the decision of the Board.

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