Sumon v. Torture Claims Appeal Board and Another

HCAL 926/2017

[2018] HKCFI 1565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 926 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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a 33-year-old national of Bangladesh who entered Hong Kong illegally on 10 April 2007 and was arrested by the police on 16 June 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 21 June 2008 on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”) for refusing to join them, and for wrongful prosecution by the police for a murder charge falsely made against him by his cousin.

2.On 11 February 2015 his subsequent non-refoulement claim made with legal representation from the Duty Lawyer Service was rejected by the Director of Immigration (“the Director”) 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.The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision of the Director, and after failing to attend the oral hearing on 9 September 2016 before the Board or to provide any explanation for his absence or made any request for another hearing, the Board proceeded to consider his appeal on papers and on 20 April 2017 dismissed his appeal and confirmed the Director’s decision.

4.On 28 June 2017 the applicant filed his Form 86 under HCAL 340/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward 8 grounds for his intended challenge, and for which he requested for and was given an oral hearing on 5 September 2017 before Deputy Judge Woodcock, but again he was absent on that date without any explanation, and Deputy Judge Woodcock proceeded to consider his application on papers.

5.On 29 September 2017 Deputy Judge Woodcock did not find any of the applicant’s grounds to show any error of law by the Board or any evidence of procedural unfairness or any failure to apply high standard of fairness in the Board’s decision, and therefore refused leave to the applicant to apply for judicial review.

6.It is relevant to also note that while it was not raised before the Director nor the Board, the learned judge in her decision also considered the applicant’s claim under BOR 2 risk and found on the facts before both the Director and the Board that he also failed to establish his claim under BOR 2 risk.

7.On 22 November 2017 the applicant filed another Form 86 in these proceedings before me for leave to apply for judicial review again of the Board’s decision and in which he put forward three grounds which were essentially all about the Board’s failure to apply high standard of fairness in providing him with the hearing bundle only 4 days before his appeal hearing with the majority of documents in English thereby not giving him sufficient time to prepare for his appeal hearing, of which even if true I find no reason why he could not have included or presented in his earlier proceedings before Deputy Judge Woodcock, nor has he provided any reason for their omission. 

8.Instead, in his supporting affirmation of the same date he sought to explain his absence at the oral hearing before the Board due to his lack of understanding of what would happen at the hearing and repeated his complain about the late provision of the hearing bundle to him. As already noted this issue over late provision of the hearing bundle was never raised in his proceedings before Judge Woodcock, and for which he also chose not to appear at the oral hearing of his leave application without any reason or explanation.

9.Having carefully considered the decision of the learned judge, it is my firm view that the applicant would not have succeeded with his leave application even if he had included that ground in his application or argued it at the hearing, as other than his own bare assertion he did not even now produce any evidence such as the date of the letter which accompanied the hearing bundle or of the Director’s skeleton submission to show that it was indeed given to him only a few days before his oral hearing before the Board, and that even if it was indeed the case, the fact that he chose not to attend that hearing or made any request for further time thereafter, and that he was already well familiar with most of the documents in the bundle including his own Non-refoulement Claim Form, records of his screening interviews and the Director’s decision which were all available to him when he still had legal representation and long before his appeal hearing before the Board certainly would not have assisted him or advanced his case any further.

10.As such it is clearly an abuse of the court process by the applicant in issuing his second application for judicial review after having been already refused leave by Deputy Judge Woodcock under HCAL 340/2017, and as the principle of res judicata applies, his application is therefore dismissed.    

Dated the 20^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