Hossain Mohammad Zakir v. William Lam, Esq.,

HCAL 73/2018

[2019] HKCFI 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 73 of 2018

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 in open court;

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 15 July 2014 and was arrested by police on the same day.  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”) for refusing to leave his party Jamaat-e-Islami (“JeI”) or to join AL.  He was then released on recognizance pending the determination of his claim.

2.By a Notice of Decision dated 2 September 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 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 from the AL people to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from those AL people, that there was no evidence that he had ever been specifically targeted by the AL people due to his insignificant position in JeI, 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 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Dhaka, Chikandi, Chittagong, Khulna or Rajshahi where it would be difficult if not impossible for to those AL supporters locate him.

4.By a Notice of Further Decision dated 18 April 2017 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”).

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 19 September 2016, and for which he attended an oral hearing on 26 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 18 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.In its decision the Board found the applicant to be a dishonest and unreliable witness, that there is no substantial risk or any substantial basis for his claimed fear, that there was no reason why he would be targeted by the AL people, and that it would not be unreasonable or unsafe for him to relocate safely within Bangladesh.  

7.On 21 June 2017 the applicant filed his Form 86 under HCAL 313/2017 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 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.  

8.The applicant did not request any oral hearing for his application, and on 5 January 2018 his application was refused by Li J when none of his grounds were found to be reasonably arguable and that there was no realistic prospect of success in his intended application.

9.The applicant did not lodge any appeal against that decision but instead on 15 January 2018 he filed another Form 86 in these proceedings now before me, and in his supporting affirmation of the same date he put forward exactly the same eight grounds for his application notwithstanding that all of which had already been found by another Court as not reasonably arguable or to have any realistic prospect of success.  

10.In the premises the principle of res judicata applies, and that this second application of the applicant is clearly an abuse of the court process, for which he did not attend the oral hearing scheduled at his request for his application but subsequently wrote to explain that he did not receive the notice of that hearing without providing any evidence and asked for another hearing, of which I do not accept as a valid excuse, nor for the reasons already given do I propose to entertain any prospect of the court process being further abused.  His application is dismissed accordingly.

Dated the 11^th day of January 2019.

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