Hassan Md v. Torture Claims Appeal Board

HCAL 69/2018

[2019] HKCFI 1761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 69 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 15 June 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 39-year-old national of Bangladesh who entered Hong Kong illegally on 23 June 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 members of rival political party Awami League (“AL”). He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Jajira, Shariatpur, Bangladesh.  After leaving school he worked as a photographer in a studio and got married with a family of two children.  

3.He also became a supporter of AL in the 1990s, but after the party lost the election in 2001 and was no longer in power, he eventually left the party to join its rival Bangladesh Nationalist Party (“BNP”).

4.During the general election in 2006, some AL supporters in his home village approached the applicant to demand that he re-joined AL, and when he refused, they threatened him with violence.  As a result the applicant moved his family to Dhaka, but when he saw the same AL supporters in Dhaka, he was concerned that they were there to look for him, and so he left Bangladesh in 2011 for Malaysia where he stayed for two years without incidents until October 2013 when he thought it would be safe to return to Bangladesh, but after AL won the election in 2014 and became the ruling party, he was concerned that their supporters would come after him again, and so he departed Bangladesh in June 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim.

5.By a Notice of Decision dated 21 July 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”).

6.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 those AL supporters to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the applicant had been targeted by the AL people and that his fear was based entirely on his own speculation, 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 169 million people spread across a vast territory 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 his home district such Dhaka or Camilla where it would be difficult if not impossible for those AL supporters to locate him.

7.By a Notice of Further Decision dated 18 May 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”).

8.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 was filed on 1 August 2016, and for which he attended an oral hearing on 2 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found multiple inconsistencies and implausibilities in the applicant’s evidence of his claim and that he was not a credible witness, that reliable COI did not support his claim either, and concluded that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 28 June 2017 the applicant filed his Form 86 under HCAL 334/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal including failing to make appropriate arrangements to provide the hearing bundle within reasonable time with proper translation to give him sufficient time to properly prepare for his appeal;

(3)  that the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant.  

11.On 29 December 2017 Wong J refused to grant leave to the applicant’s application upon finding none of his proposed grounds reasonably arguable or any realistic prospect of success for his intended application.

12.The applicant did not appeal against that decision, and instead on 15 January 2018 he filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision with similar grounds as before.

13.In his supporting affirmation of the same date, he acknowledged that he had previously made similar application in paragraph 8 as follows:

“ … I had previously applied for leave to apply judicial review but the leave was refused by the Honourable Mr Justice A. Wong due to lack of presentation in my previous application for leave to apply judicial review. Therefore, I shall be grateful if you could consider my present application as a fresh application.”

14.At the hearing of his leave application, the applicant conceded that his previous leave application had already been properly disposed of by the Court in HCAL 334/2017, but as he was not satisfied with the Court’s decision, and as his problems back home had still not been resolved, he therefore wanted to make another application for judicial review.

15.In the premises and putting aside the fact that his application would have been seriously out of the period required by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, it is in my judgment clearly an abuse of process for the applicant to bring a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 334/2017, and for failing to inform the Registry of the same when he filed his Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

16.For these reasons this second leave application for judicial review by the applicant is hereby struck out and dismissed.

Dated the 26^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