RE MUSHARAF KAZI

CACV 474/2019

[2020] HKCA 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 474 OF 2019

(ON APPEAL FROM HCAL NO. 90 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court):

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board.

1.2  This appeal was scheduled to be heard on 21 January 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 10 October 2019, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 3 July 2014 and was arrested by police on 7 July 2014.  He raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of the Awami League.

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [3] of the CALL-1 Form.

3)  The Director’s Decision and Notice of Further Decision

3.1  The Director of Immigration decided against the applicant’s claim on 19 June 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

3.2  By a Notice of Further Decision dated 9 November 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 6 July 2015.  After a hearing held on 8 November 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 9 February 2017.

4.2  The Board found that the applicant was not a witness of truth.  He was unable to explain contradictions between what he had stated and not stated in his non-refoulement claim form and what he had said during his interview with the Immigration Department.  The Board’s overall impression of the applicant was that he was ready to invent answers and exaggerate his evidence in the hope of advancing his claim of non-refoulement protection.  The Board found the applicant evasive, lacking in credibility and unreliable.

5)  Previous hearing before Li J

5.1  In March 2017, the applicant filed his Form 86 under HCAL 63/2017 and it was dealt with by another judge, namely, Li J.

5.2  The applicant complained before Li J that the Board was procedurally unfair, irrational, procedurally in error, failed to provide care, gave hearing bundles to him late, relied on source of information not officially recognized.  On 5 January 2018 Li J refused the application upon finding none of his proposed grounds were reasonably arguable or that there was any error of law or procedural unfairness, and that there was no realistic prospect of success.

6)  Decision of the Judge

6.  The applicant did not appeal against the decision of Li J, but instead on 18 January 2018 filed another Form 86 before the Judge.  The Judge held that res judiciata clearly applied and it was an abuse of process for the applicant to try to re-litigate matters.  The Judge struck out the application and the case was dismissed on 27 September 2019.

7)  Grounds of appeal

7.  In summary, the applicant in his notice of appeal stated that he will have hardship returning to his home country.  He stated that the Board relied on source of information which was not officially recognized or simply hearsay.  It relied on cases that were outdated. 

8)  Our view

8.1  In our view there are no merits in the applicant’s appeal.  It clearly is an abuse of process for the applicant to commence another application on the same matter when the previous one was already dismissed.

8.2  Accordingly the appeal is dismissed.