Md Mofajjol Hossain v. Yung Yiu-wing, Esq., and Another

HCAL 1018/2017

[2018] HKCFI 2263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1018 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 37-year-old national of Bangladesh who entered Hong Kong illegally on 15 February 2007 and was arrested by police on 12 April 2008.  After being 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 supporters of rival political party Bangladesh Nationalist Party (“BNP”) or by the police for certain false charges against him.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Khoazpur Babnatala, District Madaripur, Bangladesh.  After leaving school he worked as an auto-mechanic in Badda, Dhaka and became a supporter of the Bangladesh Jatiya Party (“BJP”) regularly attended its meetings and rallies as well as putting up posters and banners for the party.  As BNP was then the ruling party, there were frequent conflicts between their supporters and those of BJP.

3.One day in 2006 when the applicant was participating in one of BJP’s rallies in Badda, Dhaka, he and his fellow BJP’s supporters were attacked by supporters of BNP with wooden rods and sticks that he sustained bruises and injuries to his body and limbs before he managed to escape from the scene.

4.About one month later while the applicant was attending a party meeting in their clubhouse, a group of BNP members and supporters appeared and tried to break up the meeting by hitting them with wooden sticks and breaking things in the club.

5.Thereafter and for the remainder of 2006 the applicant and his fellow BJP supporterswould continue to be attacked by BNP supporters during their meetings or rallies, but none of which were reported to the police as not only were they common in Bangladesh but as BNP was the ruling party the applicant doubted that the police would be willing to act.

6.However, one day the applicant heard that the landlord of the premises where he worked as a mechanic had been murdered and that the police were looking for him and some of his fellow BJP members over the murder of which he believed to be a false charge laid against him by the BNP people, and as he was concerned that he might be killed by thepolice in their attempt to arrest him, he therefore fled to his sister’s place in Mohammadpur to make arrangement to leave Bangladesh, which he did on 10 January 2007 for China, and from there he sneaked into Hong Kong and subsequently lodged his torture claim, and upon the commencement of the Unified Screening Mechanism, his torture claim was taken as a non-refoulement claim for which he later completed a Non-refoulement Claim Form on 9 May 2014 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 27 August 2014 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 8of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and riskof persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and after attending an oral hearing before the adjudicator, his appeal was dismissed on 19 December 2016 by the Board which also confirmed the Director’s decision. 

9.On 23 May 2017 applicant filed his Form 86 under HCAL 223/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds including procedural impropriety on their parts to consider properly the relevant COI or to take into account of the concept of extended state acquiescence, or error or misdirection in failing to consider the psychological harm on him, or generally irrationality in their decisions in rejecting his claim.

10.He was however by then more than two months late with his application as the last date of the three months within which he was required by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A to make his application fell on 19 March 2017, for which he did not make any application for extension of time nor provide any explanation for his delay, nor did he appear at the oral hearing requested by him in his application before Chung J who then proceeded to dismiss his application for want of prosecution on 27 November 2017.

11.There was never any appeal made against that decision, but the applicant on 6 December 2017 filed another Form 86 against the Board’s decision in these proceedings now before me, and in his supporting affirmation of the same date he put forward similar grounds as before but dressed up slightly different as follows:

(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 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.  

12.Even putting aside the fact that the applicant was almost 9 months out of time with this Form 86 again without any valid explanation, his application for leave to apply for judicial review of the Board’s decision has already been dealt with and disposed of by another court when it was dismissed on 27 November 2017, hence with the application of the principle of res judicata, this second application which is essentially on similar grounds is clearly an abuse of process by the applicant, and as such and in the premises I see no reason why it should not be dismissed forthwith, and I so order accordingly.

Dated the 12^th day of October 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