Md Ali Asgher v. Torture Claims Appeal Board

HCAL 259/2018

[2019] HKCFI 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 259 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:

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 12 May 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 38-year-old national of Bangladesh who arrived in Hong Kong on 22 November 2003 with permission to remain as a visitor up to 24 November 2003 when he did not depart and instead overstayed until 2 October 2011 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the family of his murdered friend who thought he was involved in his murder and/or by the real murderers for having witnessed the murder.

2.By a Notice of Decision dated 4 March 2015 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.By a Notice of Further Decision dated 24 October 2016 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”).

4.The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, and for which he attended an oral hearing on 8 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 19 May 2017 the applicant filed his Form 86 under HCAL 214/2017 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 alleging procedural impropriety or unfairness and misdirection in law for his intended challenge.

6.Upon hearing his oral submission Deputy High Court Judge Woodcock on 8 November 2017 found none of his proposed grounds reasonably arguable for his intended challenge and refused him leave for judicial review of either decision.

7.The applicant did not appeal against that decision, but more than three months later on 20 February 2018 he filed another Form 86 in these proceedings again for leave to apply for judicial review, on this occasion only the Board’s decision, and put forward nine grounds for his intended challenge which are essentially the same or similar to those that had been put before Deputy Judge Woodcock and were all found not reasonably arguable.

8.However, neither in the Form 86 nor his affirmation of the same date did the applicant allude to the earlier decision given by Deputy Judge Woodcock in HCAL 214/2017, and hence the Registry did not detect that he had previously already made a similar application which had been properly disposed of, and therefore allowed him to proceed with this second application of his which is now before me.

9.At the scheduled oral hearing the applicant failed to appear, but shortly thereafter he sent a letter to Court claiming to have fallen sick on that day for his absence and asked for another oral hearing but not so soon as he was still recovering from his medical problem. He also produced a referral letter from the Hospital Authority citing his complaint of rectal bleeding but with no other medical symptoms.

10.His alleged ailment was in fact detailed in the Director’s decision of 4 March 2015 in which it was said to be piles or hemorrhoids and with which the applicant had caused several postponements to his screening interview before the Immigration Department which required a total of seven interviews and almost one year to complete, and in his appeal before the Board he also for various excuses applied for postponement of his scheduled appeal and hearing, of which the adjudicator described in the Board’s decision as his attempts to delay the process of his non-refoulement claim.  Given this history of persistent delays throughout the past four years of the applicant’s case caused by his alleged medical ailment but in the absence of any medical evidence of something more serious than so far disclosed by the applicant, and for the reasons below I did not see any justification for any further delay or to schedule another oral hearing which could have assisted the applicant to advance his case at all, and proceeded to deal with his application in his absence and on paper.

11.Clearly this is a case in which the principle of res judicata applies and the applicant cannot be allowed to re-litigate, and it is also an abuse of process for him to bring a second judicial review in respect of the same decision of the Board after he failed to obtain leave from Deputy Judge Woodcock, and without making full and frank disclosure to the Registry when he issued his ex parte application.

12.In the premises and for these reasons, this second application for leave to apply for judicial review of the Board’s decision by the applicant is 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