Akther Lima v. S. J. Geiser, Esq., Torture Claims Appeal Board

HCAL 427/2018

[2019] HKCFI 2369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 427 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Bangladesh who arrived in Hong Kong on 16 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 November 2015 or within 14 days of its early termination. On 2 January 2014 her contract was prematurely terminated, but she did not depart and instead overstayed until she was arrested by police on 7 February 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband and/or by her creditor for failing to repay her loan. She was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Goda Dhar Dangi, Kotwali, District Faridpur, Bangladesh.  After leaving school she worked as domestic helper in Dhaka, married her husband there and gave birth to their daughter.

3.However, her relationship with her husband did not fare well due to their different political opinion which led to frequent quarrels during which her husband would become violently abusive towards her, which led her to eventually leave her husband in 2013 when she brought her daughter back to her parents’ home in their home village, and to avoid her husband’s demands to return to him, she applied to work as a foreign domestic helper in Hong Kong by borrowing a loan from a money lender to pay for the agency fees.

4.On 16 November 2013 she arrived in Hong Kong to start her employment, but when her contract was prematurely terminated in January 2014, she was unable to make any loan repayments and therefore overstayed in Hong Kong, and upon her arrest by the police she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 13 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 30 July 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”).

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 her husband or her creditor to the Applicant upon her return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from them, that her problems with them were domestic or private monetary disputes without any 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 140,000 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 Chittagong where it would be difficult if not impossible for her husband or creditor to locate her.

7.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 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”).

8.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 August 2015, and for which she attended an oral hearing on 18 January 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 27 July 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.On 4 August 2017 the Applicant filed her Form 86 under HCAL 484/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her 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 himself 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 his 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.  

10.On 9 March 2018 her application was refused by Deputy High Court Judge Woodcock upon finding none of her grounds reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision or any failure on the part of the adjudicator to apply high standards of fairness in determining her claim, and that there was no realistic prospect of success in her intended application.

11.The Applicant did not lodge any appeal against that decision, but instead she on 16March 2018 filed another Form 86 in these proceedings now before me for leave to apply for judicial review again of the Board’s decision, and in her affirmation she put forward essentially the same grounds as before for her intended application.

12.Clearly the principle of res judicata applies, and that it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court under HCAL 484/2017, and also for failing to inform the Registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

13.For these reasons this second application by the Applicant for leave to apply for judicial review of the Board’s decision is hereby struck out and dismissed.

Dated the 13^th day of November 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