BEGUM JAHANARA v. IAN CANDY, ESQ, ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 428/2018

[2019] HKCFI 2613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 428 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 37-year-old national of Bangladesh who arrived in Hong Kong on 4 October 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 October 2015, but when her contract was prematurely terminated on 27 December 2013 she did not depart and instead overstayed and was arrested 12 August 2014 by the Immigration Department when she subsequently raised a non-refoulement claim on the basis that if she returned to Bangladesh she would be harmed or killed by her brothers-in-law for political reasons.  She was subsequently released on recognizance pending the determination of her claim.

2.  By a Notice of Decision dated 24 July 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”).

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 her brothers-in-law to the applicant upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal disputes between them without 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 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 her home district in large cities such as Chittagong where it would be difficult if not impossible for to her brothers-in-law locate her.

4.  By a Notice of Further Decision dated 9 June 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicablegrounds 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 6 August 2015, and for which she attended two oral hearings on 28 June 2016 and 26 July 2016 before the Board with legal representation during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 24 August 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.  On 14 September 2017 the applicant filed her Form 86 under HCAL 621/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her 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 her 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 her 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 her leave application was refused by Campbell-Moffat J after hearing the applicant and upon finding none of her grounds reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Board or in the Board’s decision, and that there was no prospect of success in her intended application.

8.  The applicant did not lodge any appeal against that decision, but instead on 16 March 2018 filed another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision, and put forward essentially the same grounds as before in her previous application which had all been found not reasonably arguable.

9.  Clearly the principle of res judicata applies in this second application of the applicant, and it is an abuse of process for him to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court under HCAL 621/2017, and also for failing to disclose to the Registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

10.  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