Rigan Mitra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1063/2017

[2018] HKCFI 2640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1063 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 on 30 August 2018 and 3 October 2018;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally on 11 May 2009 and was arrested by police on 21 May 2009. 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 Purba Bangla Sarbohara Party (“PBSP”).  He was then released on recognizance pending the determination of his claim which was later taken as a non-refoulement claim under the unified screening mechanism.

2.By a Notice of Decision dated 2 April 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 the Hong Kong Bill of Rights (“HKBOR”) (“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.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from the PBSP people, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other areas away from his home district such as Dhaka where it would be difficult if not impossible for  those PBSP people to locate him.

4.By a Notice of Further Decision dated 20 June 2017 the Director again rejected the applicant’s claim after receiving and considering further representation from the applicant 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”).

5.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 he filed on 16 April 2015, and for which he attended an oral hearing on 4 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.On 28 July 2017 the applicant filed his Form 86 under HCAL 465/2017 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, and for providing him with the hearing bundle just a few days before his appeal hearing with the majority of documents in English without interpretation thereby giving him insufficient time to prepare for his appeal;

(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.  

7.Although the applicant requested an oral hearing for his application, he did not appear at the scheduled hearing before Deputy High Court Judge Woodcock, nor did he provide any explanation for his absence.  The learned deputy judge proceeded to deal with his application in his absence, and upon finding none of his grounds reasonably arguable on 4 December 2017 refused leave for judicial review.

8.The applicant did not appeal against that decision, but on 12 December 2017 filed another Form 86 again for leave to apply for judicial review of the Board’s decision, and on this occasion he put forward three grounds that the Board failed to maintain high standard of fairness, provided him with the hearing bundle just six days before his appeal hearing without interpretation, and failed to consider the relevant COI properly or adequately when assessing his claim, which are essentially similar to those grounds of his previous application but dressed up slightly different.

9.The applicant again requested an oral hearing for this application but did not appear at the hearing scheduled on 30 August 2018, for which he afterwards wrote a letter to court to explain that he had to go to the hospital on that day for a medical condition and submitted a certificate issued by the Hospital Authority that he was diagnosed to have atypical chest pain, but when he again failed to appear at the subsequent re-scheduled hearing and again put forward the same excuse of being sick on that morning and a medical certificate this time for left wrist pain which I found too much of a coincidence and that in any event that his claimed wrist pain not acceptable reason for him to miss yet another hearing, and decided that there was no justification to re-scheduled a further oral hearing for what is clear to me a hopeless application, I therefore proceeded to deal with his application in his absence.

10.With his first application having already been properly disposed of by another court, clearly the principle of res judicata applies to this second application of the applicant based on similar grounds, which is in the circumstances an abuse of the court process, and is accordingly hereby dismissed. 

Dated the 7^th day of December 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