BEPARY MOHAMMAD ARSHED v. GERARD PAUL MUTTRIE, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 44/2018

[2019] HKCFI 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 44 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 25 April 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.  The applicant is a 37-year-old national of Bangladesh who entered Hong Kong illegally on 8 November 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members 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 30 December 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 the AL members 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 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 members to locate him.

4.  By a Notice of Further Decision dated 1 November 2016 the Director again rejected the applicant’s claim in the absence of any 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 12 January 2016, and for which he attended an oral hearing on 1 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.  On 2 May 2017 the applicant filed his Form 86 under HCAL 171/2017 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 26 January 2018 his leave application was refused by Deputy High Court Judge Woodcock after hearing him in submissions 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 application.

8.  The applicant did not appeal against that decision, and in fact even before it was handed down by the Court, on 9 January 2018 he filed another Form 86 in these proceedings now before me for leave to apply again for judicial review of the Board’s decision, and put forward the identical eight grounds as above for his intended application.

9.  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 in HCAL 171/2017, 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.

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