Halder Rekha Rani v. Abu B. Bin Wahab, Esq.,and Another

HCAL 1080/2017

[2018] HKCFI 2069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1080 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 38-year-old national of Bangladesh who arrived in Hong Kong on 14 June 2014 with permission to work as a foreign domestic helper, but when her employment contract was prematurely terminated on 19 December 2014 she did not depart and instead overstayed until her arrest by the police on 15 October 2015.  After being referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by a trio of local gangsters in her home village over certain personal dispute while in Bangladesh.  She was then released on recognizance pending the determination of her claim.

2.By a Notice of Decision dated 1 June 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 19 January 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her 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, the notice of which she filed on 8 June 2016, and for which she attended an oral hearing on 6 February 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 21 March 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 12 April 2017 the applicant filed her Form 86 under HCAL 135/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following eight grounds for her 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 her 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 her 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.Her application then came before Madam Justice Toh and after an oral hearing whenthe applicant appeared in person, it was dismissed by the court on 18 September 2017.  That decision was never appealed by the applicant who instead 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 her supporting affirmation of the same date she listed exactly the same eight grounds as before when all which had already been dealt with and rejected by the court in the previous proceedings of HCAL 135/2017. 

7.In the premises and as the principle of res judicata applies, this second application is clearly an abuse of the court’s process by the applicant.  Accordingly her application is hereby dismissed.

Dated the 21^st day of September 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