NAHID MOHAMMAD v. JOHN T GLASS, ESQ., TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

NAHID MOHAMMAD v. JOHN T GLASS, ESQ., TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

The application for leave was dismissed because the applicant sought to re‑litigate identical grounds that had already been considered and rejected in an earlier leave application; that earlier refusal established there were no reasonably arguable grounds and the present application therefore constituted an abuse of process (res judicata), and the Director and the Board had given rational, legally supportable reasons (low intensity of past ill‑treatment, availability of state protection and reasonable internal relocation) for rejecting the non‑refoulement claim.

Citation
[2019] HKCFI 1069
Parties
Applicant: Nahid Mohammad; Putative Respondent: John T Glass, ESQ., Torture Claims Appeal Board; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 June 2019
Case Number
HCAL1006/2017
Procedural Posture
Judicial Review (leave Application) / Decision on Leave Application (dismissed)
Outcome
Application for leave to apply for judicial review dismissed.
Legal Topics
Non‑refoulement, Torture (part VIIC Immigration Ordinance), Article 3 HKBOR (cruel, Inhuman or Degrading Treatment), Article 2 HKBOR (right to Life), Refugee Convention Article 33, Res Judicata, Abuse of Process, Procedural Fairness, Irrationality, Internal Relocation
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Non‑refoulement Torture (part VIIC Immigration Ordinance) Article 3 HKBOR (cruel, Inhuman or Degrading Treatment) Article 2 HKBOR (right to Life) +6 more

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Parties

Nahid Mohammad

Applicant

John T Glass, ESQ., Torture Claims Appeal Board

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Judicial Review (leave Application) / Decision on Leave Application (dismissed)

Legal Issues

  1. 1 Whether the applicant has reasonably arguable grounds to apply for judicial review of the Board's decision
  2. 2 Whether the present application is barred by res judicata / constitutes an abuse of process because identical grounds were previously rejected
  3. 3 Whether the Director and the Board erred in law in assessing non‑refoulement risks (torture/BOR3/BOR2/persecution) and in concluding state protection and internal relocation were available

Ratio Decidendi

The application for leave was dismissed because the applicant sought to re‑litigate identical grounds that had already been considered and rejected in an earlier leave application; that earlier refusal established there were no reasonably arguable grounds and the present application therefore constituted an abuse of process (res judicata), and the Director and the Board had given rational, legally supportable reasons (low intensity of past ill‑treatment, availability of state protection and reasonable internal relocation) for rejecting the non‑refoulement claim.

Court Disposition

Application for leave to apply for judicial review dismissed.

Orders

  • The application for leave to apply for Judicial Review be dismissed.