Rowson Rahman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1057/2017

[2018] HKCFI 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1057 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 14 August 2012 with permission to remain as a visitor up to 28 August 2012 when he did not depart and instead overstayed and was arrested by the police on 27 October 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”). 

2.By a Notice of Decision dated 8 January 2016 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 1 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, which appeal he filed on 21 January 2016, and for which he attended an oral hearing on 25 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 3 April 2017 the applicant filed his Form 86 under HCAL 110/2017 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;

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

(9) that the hearing bundle was given to him just a few days before his appeal hearing with the majority of documents in English that there was insufficient time for him to prepare for the hearing or to find an interpreter to assist him in his appeal.    

6.On 20 September 2017 his leave application was dismissed by Anthony Chan J in that proceedings in which His Lordship found no merit with the following observations:  

“ … The grounds contained in the Applicant’s affirmation appear to be largelythe product of a cut and paste exercise. There is no proper particulars of the complaints. He had nothing to say at the hearing of his leave application. Importantly, the Applicant had a hearing before the Appeal Board. His case was found to be lacking in credibility and he had failed to substantiate his claims ….”

7.However, on 12 December 2017 the applicant filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and in it he put forward some of the same grounds as before under HCAL 110/2017 but dressed them up in slightly different forms as follows:

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

(2) that the Board erred in failing to approach the applicant’s appeal as a rehearing and instead simply tried to see whether he could find fault with the decision of the Director; and

(3) that the Board failed to take into account in its decision that the applicant was not legally represented and has insufficient legal knowledge in presenting his case at his appeal hearing.  

8.As in his earlier proceedings in HCAL 110/2017 the applicant did not provide any particulars for these complaints except for the one over the provision of the hearing bundle to him just a few days before his appeal hearing, of which even if true he never raised as an issue at his appeal hearing before the Board during which he was assisted by an interpreter, and in any event he should be well familiar with most of those documents such as his Non-refoulement Claim Form, record of his screening interviews and the Director’s decisions which were already made available to him earlier when he still had legal representation, and which I do not see how it could be argued again in this application, nor was he able to provide any basis or reason at the oral hearing before me why he should be allowed to have another go at it again in these proceedings.

9.In the premises I find this application of the applicant an abuse of the court process, and with his earlier application under HCAL 110/2017 already been dealt with and disposed of by the court, and in applying the principle of res judicata, I accordingly dismiss his application.

Dated the 31^st 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