Khatun Mst Asma v. Kay Ransome, Esq., Torture Claims Appeal Board

HCAL 89/2018

[2019] HKCFI 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 89 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 19 June 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Bangladesh who arrived in Hong Kong on 22 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination.  On 21 July 2014 her employment contract was prematurely terminated, but she did not depart and instead overstayed until 22 October 2014 when she was arrested by the police.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by supporters of rival political party the Awami League (“AL”).

2.By a Notice of Decision dated 29 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the AL people to the applicant upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, 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 part of Bangladesh away from her home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for those AL people to locate her.

4.By a Notice of Further Decision dated 28 April 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”).

5.On 11 July 2016 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, and for which she attended an oral hearing on 12 May 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 19 June 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.On 4 July 2017 the applicant filed her Form 86 under HCAL 357/2017 for leave to apply for judicial review of the Board’s decision and put forward eight grounds alleging essentially various procedural improprieties and irrationalities in the Board’s decision for her intended challenge.  

7.On 22 December 2017 her application was refused by Deputy High Court Judge Woodcock upon finding no error of law or procedural unfairness in the Board’s decision, and that none of her grounds as reasonably arguable for her intended challenge.

8.The applicant did not appeal against that decision, and instead more than one year later on 18 January 2018 filed another Form 86 in these proceedings now before me for leave again to apply for judicial review of the Board’s decision, and again put forward exactly the same eight grounds as before for her intended challenge.

9.At the oral hearing of her application she was unable to explain why she should be allowed to make another leave application for judicial review, and merely claimed that she cannot go back to her home country and just wanted to remain in Hong Kong.

10.Clearly this is a case in which the principle of res judicata applies and the applicant cannot be allowed to re-litigate her claim, and that it is also an abuse of process for her to bring a second judicial review in respect of the same decision of the Board after she failed to obtain leave in her previous application, and for failing to make full and frank disclosure to the Registry when she issued her ex parte application.  

11.In the premises her second application for leave to apply for judicial review of the Board’s decision is hereby struck out and dismissed.

Dated the 19^th day of July 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