Shariful Islam v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 917/2017

[2018] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 917 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 national of Bangladesh who arrived in Hong Kong on 5 May 2006 with permission to remain as a visitor up to 19 May 2006 when he did not depart and instead overstayed until 18 December 2007 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of the political party Bangladesh Nationalist party (“BNP”) for his father’s refusal to quit his party Awami League (“AL”) to join BNP. 

2.By a Notice of Decision dated 13 March 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 21 November 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 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, for which he filed his appeal on 26 March 2015, and for which he attended an oral hearing on 6 December 2016 before the Board but declined to give evidence or to answer questions from the adjudicator for the Board.  On 12 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

5.On 30 June 2017 the applicant filed his Form 86 under HCAL 348/2017 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 grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into 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 himself 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 his 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.In addition the applicant also complained in his affirmation about the hearing bundle being provided to him just a few days before his appeal hearing with the majority of the documents in English therefore giving him insufficient time to prepare for his appeal and to find an interpreter to assist him in his appeal.   

7.At the scheduled oral hearing on 5 September 2017 the applicant failed to appear and in the absence of any explanation from him, Deputy Judge Woodcock decided to proceed to deal with his leave application without scheduling another oral hearing, and on 13 October 2017 the learned deputy judge refused leave to the applicant’s application after finding none of his grounds showed any error of law by the adjudicator, that there was no evidence of procedural unfairness nor any failure to apply high standard of fairness in the consideration of his claim, and that there was no realistic prospect of success in his intended application. 

8.However, the applicant on 20 November 2017 filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and on this occasion he put forwards some of the same grounds as before under HCAL 348/2017 but which were dressed up slightly different as follows:

(1)  that the Board erred by failing to maintain a high standard of fairness by not administering that the hearing bundle and skeleton argument of the Director to him within a reasonable period of time with interpretation in his mother tongue;

(2)  that the Board failed to apply the minimum standards of procedural fairness; and

(3)  that the Board failed to take into account when making its decision that the applicant was not legally represented after the Director’s decision as he has insufficient legal knowledge in his appeal hearing.

9.At the scheduled oral hearing the applicant again as in the previous proceedings failed to appear, and in the absence of any explanation from him for his absence and as to why he should be allowed to have another go with this second application of his when in particularly it is based essentially on similar grounds as before, I find this second application of the applicant a blatant abuse of the court process, and with his earlier application under HCAL 348/2017 already dealt with and disposed of by another court, and in applying the principle of res judicata, this second application of the applicant for judicial review is hereby dismissed.

Dated the 17^th 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