MD RINTU ISLAM v. EVA RUTH OF THE TORTURE CLAIMS APPEAL BOARD

HCAL 627/2018

[2020] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 627 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

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 entered Hong Kong illegally on 15 May 2008 and was arrested by police on 25 May 2008.  After he was referredto 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 the local supporters of rival political party Awami League (“AL”) for refusing to join their party and/or to pay them extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 17 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 from the 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 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 168 million people spread across a vast territory of more than 148,000 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 28 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 10 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 June 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 26 June 2017 the Applicant filed his Form 86 under HCAL 329/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he 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 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 there exists 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.

6.  On 1 December 2017 his leave application was refused by Deputy High Court Judge Woodcock after hearing him in person and upon finding none of his grounds reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in his intended challenge.

7.  The Applicant did not appeal against that decision, but instead filed another Form 86 on 12 April 2018 in these proceedings again for leave to apply for judicial review of the Board’s decision based on exactly the same eight grounds as before.

8.  Clearly the principle of res judicata applies, and 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 in HCAL329/2017, 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 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