MUSHARAF KAZI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 90/2018

[2019] HKCFI 2106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 90 of 2018

  Application for Leave to Apply for Judicial Review

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

Following:

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

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 3 July 2014 and was arrested by police on 7 July 2014.  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 supporters of rival political party Awami League (“AL”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Nabinagar, Brahman Baria, Bangladesh.  After leaving school he worked as an electrician, got married and became a supporter and ordinary member of the political party Bangladesh Nationalist Party (“BNP”).

3.  During the general elections in 2014, he was approached by some AL members to join their party, and when he refused, he was threatened and assaulted by them, and when his complaint to the local police was ignored, he felt that his life was in danger, and so he departed Bangladesh in June 2014 for China, and from there he later sneaked into Hong Kong and raised a non-refoulement claim for protection.

4.  By a Notice of Decision dated 19 June 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”).

5.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he would be at risk of harm from those AL people upon his return to Bangladesh 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 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 in large cities such as Dhaka where it would be difficult if not impossible for those AL people to locate him.

6.  By a Notice of Further Decision dated 9 November 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”).

7.  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 6 July 2015, 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 9 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  On 3 March 2017 the applicant filed his Form 86 under HCAL 63/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

  (1)  procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

  (2)  procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

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

  (4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

  (5)  procedural unfairness in that the hearing bundle was only given to him shortly before his appeal hearing with the majority of the documents in English without translation that he was not given sufficient time to prepare for his appeal; and

  (6)  that the Board had significantly relied on source of news not officially recognized or is hearsay or outdated which led to groundless speculation that it would be safe for him to return to his home country.  

9.  On 5 January 2018 his application was refused by Li J upon finding none of his proposed grounds reasonably arguable or that was any error in law or procedural unfairness in the decisions of the Director or the Board, and that there was no realistic prospect of success in his intended application.

10.  The applicant did not appeal against the decision of Li J, but instead on 18 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, and put forward similar grounds or complaints that its decision was unfair or unreasonable. 

11.  Clearly 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 HCAL 63/2017, and also for failing to inform 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.

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

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