MANJU v. FRASER SYME, ESQ., TORTURE CLAIMS APPEAL BOARD, FORMERLY AN ADJUDICATOR APPOINTED BY THE SECRETARY FOR SECURITY AS AN ADJUDICATOR

HCAL 624/2018

[2020] HKCFI 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 624 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 27 May 2012 and was arrested by police on 3 June 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his former employer and arrested by the police for his involvement in an explosion of a boiler in his work place which had caused damage and casualties, and when his torture claim was rejected, he raised a claim for non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 19 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds except the earlier rejected torture claim under Part VIIC of the Immigration Ordinance, Cap 115 but including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from his former employer or the police, that the resultant police investigation and legal proceedings were about his responsibility in the accident and for compensation without any real intentionon the part of anyone to harm or kill him, that in the absence of any official involvement in any threats made by his former employer 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 130,000 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 Chittagong where it would be difficult if not impossible for his former employer to locate him.

4.  By a Notice of Further Decision dated 10 May 2017 the Director again rejected theApplicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

5.  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 29 July 2016, and for which he attended an oral hearing on 9 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.  On 18 July 2017 the Applicant filed his Form 86 under HCAL 422/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he claimed that the Board never tested his case properly and rejected his claim unfairly without giving him more time to obtain documents such as his hospital reports or police reports in support of his claim.

7.  On 28 March 2018 Deputy High Court Judge Woodcock refused his application upon his failure to attend the scheduled hearing without any explanation and upon finding none of his grounds reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application.

8.  The Applicant did not appeal against that decision, and instead on 12 April 2018 filed another Form 86 for leave to apply for judicial review again of the Board’s decision, and put forward some broad and vague assertions of the Applicant without any proper particulars or elaborations relevant to his claim, or any explanation why they had not been put before the Court in his previous application.  In any event, given the finding of DHCJ Woodcock in her decision in HCAL 422/2017 that there was no error of law or procedural unfairness in the Applicant’s process before the Board or in the Board’s decision, I do not believe that these grounds would have assisted the Applicant or advanced his case any further in his application, nor would they constitute any basis or reason to allow him to launch a second challenge against the Board’s decision.

9.  As such, clearly the principle of res judicata applies, and that it is an abuse of process for the Applicant 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 under HCAL 422/2017 against which he has never appealed, and also for his failure 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.

10.  In the premises and for these reasons, this second application of the Applicant for judicial review of the Board’s decision 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