Mohammad Mongal Mia v. Torture Claims Appeal Board

HCAL 983/2017

[2019] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 983 of 2017

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 33-year-old national of Bangladesh who entered Hong Kong illegally on 1 April 2013 and was arrested by police on 12 April 2013.  After he was referredto the Immigration Department for investigation, he raised 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”).  He was subsequently released on recognizance pending the determination of his claim.

2.By a Notice of Decision dated 14 October 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 to the Applicant from those AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 166 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 his home district in large cities such as Dhaka where it would be difficult if not impossible for those AL people to locate him.

4.On 24 October 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 4 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 May 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 25 May 2017 the Applicant filed his Form 86 under HCAL 238/2017 for leave to apply for judicial review of the Board’s decision, and 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 weighton 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 Board’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected itself 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 Board applying the incorrect standard of proof in its 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.  

6.On 4 August 2017 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of his proposed grounds reasonably arguable, that there was no error of law or procedural unfairness or failure to apply high standards of fairness in theBoard’s decision, and that there was no realistic prospect of success in his intended application.

7.The Applicant did not lodge any appeal against that decision, but instead on 29 November 2017 he filed another Form 86 for leave again to apply for judicial review of the Board’s decision, and in it he put forward essentially the same grounds or bases as before such as procedural unfairness or failure to apply high standards of fairness on the part of the Board but which had all been found by the Court as not reasonably arguable in his previous application. 

8.Clearly this is a case where the principle of res judicata applies, and that it is an abuse of process for the Applicant to try to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in his previous application under HCAL 238/2017, and also for failing to disclose to the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

9.In the premises and accordingly this second application for leave to apply for judicial review of the Board’s decision by the Applicant is hereby struck out and dismissed.

Dated the 18^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