Iftekhar Zamader v. Torture Claims Appeal Board

HCAL 911/2017

[2018] HKCFI 1520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 911 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a national of Bangladesh who last arrived in Hong Kong on 7 May 2007 with permission to remain as a visitor up to 21 May 2007 when he did not depart and instead overstayed until he was arrested by the police on 7 June 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 14 June 2008 on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party the Awami League (“AL”) and/or by the police for the false charge brought against him for a murder that he did not commit and/or by the family of the murder victim in revenge.

2.The applicant’s claim was subsequently treated and considered as a non-refoulement claim under the Unified Screening Mechanism by the Director of Immigration (“the Director”) and was rejected on 4 September 2015 on all the 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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.On 27 October 2016 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 and non-derogable rights including right to life under Article 2 (“BOR 2 risk”).

4.By then the applicant was in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the Director’s earlier decision, and on 6 February 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

5.On 13 February 2017 the applicant filed his Form 86 under HCAL 34/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following eight grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin Information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

6.On 28 August 2017 upon hearing the applicant in person Chung J refused his application for leave to apply for judicial review.

7.However, on 20 November 2017 the applicant filed another Form 86 in these proceedings for judicial review again of the Board’s decision, and in his supporting affirmation of the same date he gave exactly the same eight grounds as above in his previous application under HCAL 34/2017, and of which he acknowledged at the hearing of his leave application before me that he had no explanation or basis why he should be allowed to do so again after having already been refused leave in the previous proceedings. 

8.Clearly the principle of res judicata applies and this is an abuse of the court process by the applicant.  I accordingly refuse his leave application.

Dated the 13^th day of July 2018.

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