Khurshed Alam v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1055/2017

[2018] HKCFI 1592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1055 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 dismissed.

Observations for the Applicant:

1.The applicant is a national of Bangladesh who last arrived in Hong Kong on 12 May 2007 with permission to remain as a visitor up to 26 May 2007 when he did not depart but instead overstayed until he was arrested by police on 13 October 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 24 October 2007 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”) and/or by the Bangladeshi police for certain illegal activities.  

2.By a Notice of Decision dated 22 May 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim 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.By a Notice of Further decision dated 29 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an ealier 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 or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

4.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed 4 June 2015, and for which he attended an oral hearing on 14 December 2016 before the Board.  On 6 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 10 July 2017 the applicant filed his Form 86 under HCAL 375/2017 for leave to apply for judicial review of the Board’s decision, and in it he put forward several grounds for his intended challenge which can be summarized as follows:

(1)  that the Board was in breach of procedural fairness in unlawfully fettered its discretion by refusing his appeal, that it acted in a procedurally unfair manner in dealing with his appeal, that its decision was unreasonable or irrational in the public law sense, and that it failed to meet the greater care and duty owed to a self-represented claimant;

(2)  that he was provided with the hearing bundle only six days before his appeal hearing with the majority of documents in English giving him insufficient time to prepare for his appeal and to find an interpreter to assist him; and

(3)  that the Board significantly relied on source of news not officially recognized or was simply hearsay or outdated which led to groundless speculations that it would be safe for him to return to his country of origin.

6.When the applicant failed to attend the oral hearing scheduled for 31 October 2017 without any explanation, Deputy Judge Woodcock proceeded to deal with his application on papers and refused leave after finding his grounds not reasonably arguable and that there is no realistic prospect of success with his application. 

7.However, on 12 December 2017 the applicant filed another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision with similar grounds as before such as the Board erred by providing the hearing bundle only six days before his appeal hearing, that it failed to apply high standards of fairness in the consideration of his claim, that it failed to properly consider the relevant COI, and that it failed to take into account that he had insufficient legal knowledge representing himself in his appeal hearing.

8.In his supporting affirmation of the same date he more or less repeated the same complaints but also added as follows:

“ 11. Moreover, I crave leave for extension of time to apply for judicial review considering I had previously applied for leave to apply judicial review but the leave was refused by Deputy High Court Judge Woodcock due to lack of presentation in my previous application for leave to apply for judicial review. Therefore I shall be grateful if you could consider my present application as a fresh application.”

9.The lack of presentation in his previous application referred to by the applicant is the oral hearing on 31 October 2017 which he failed to attend before Deputy Judge Woodcock, as he explained at the hearing of his present application before me that he was unwell on that day, and when he was asked what presentation that he expected to have made at that hearing, he replied none because he thought he was there only to answer any question asked of him.  Nor did he make any presentation before me other than claiming that it was still dangerous for him to return to Bangladesh.

10.In the premises I find this second application of the applicant a blatant abuse of the court process, and with his earlier application under HCAL 375/2017 already dealt with and disposed of, and applying the principle of res judicata, I accordingly dismiss this application of the applicant.

Dated the 3^rd day of August 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