SHEIKH AL ISLAM v. WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 430/2018

[2019] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 430 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

The summons filed on 9 September 2019 be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Bangladesh who entered Hong Kong illegally on 3 July 2013 and was arrested by police on 10 July 2013.  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”).  He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 26 January 2016 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”).

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 those AL supporters upon his return to Bangladesh as low due to the absence or 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 objectiveCountry of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 169 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 Dhaka where it would be difficult if not impossible for those AL supporters to locate him.

4.  By a Notice of Further Decision dated 9 February 2017 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”).

5.  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 whichwas filed on 1 February 2016, and for which he attended an oral hearing on 24 March 2017before 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 10 July 2017 the Applicant filed his Form 86 under HCAL 377/2017 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 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.  

7.  On 2 March 2018 Deputy High Court Judge Woodcock refused his leave applicationupon finding none of his grounds reasonably arguable for his intended challenge, that therewas no error of law or procedural unfairness in his process before the Board or in the Board’s decision, and that there was no prospect of success in his intended application.

8.  The Applicant did not lodge any appeal against that decision, but instead on 16 March 2018 field another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision on essentially the same grounds or complaints which had all been rejected in his previous application as not reasonably arguable.

9.  Shortly after the hearing of his second application but before this Court delivered its decision, the Applicant on 26 August 2019 wrote to the Court and requested for his application to be dismissed as he stated as follows:

“ I want to return back to my country as my problems were solved and I am safe to be back to Bangladesh. Please stop all the further proceedings of my application which I attend the hearing already. Please dismiss my leave application.”

10.  Accordingly his second leave application was dismissed by this Court on 5 September 2019. However, on 9 September 2019, the Applicant issued a summons now before me seeking for the following order:

“ The Applicant is requesting to re-open his leave application. Previously the applicant withdrew his application as he intended to return back his home country. But as the pressure and torture raise badly that’s why the Applicantis now requesting to re-open his leave application for judicial review against the court order dated 5/9/2019.”

11.  Clearly having already dismissed his application, this Court is functus to deal with the matter any further, and that there is no power to re-open any such application.  Furthermore, had the Applicant not made his earlier request for its dismissal, I would still have done the same, as the principle of res judicata clearly applied to his second leave application, and that it was 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 failing to obtain leave from the Court in his previous proceedings under HCAL 377/2017.  

12.  In the premises and for the reasons given, this summons of the Applicant is a further abuse of process by him, and is accordingly 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