MIAH MAMUN v. YU CHEUK-MAN, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 71/2018

[2019] HKCFI 1758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 71 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 28 December 2016 is hereby struck out and dismissed.

Observations for the Applicant:

1.  The applicant is a 40-year-old national of Bangladesh who arrived in Hong Kong on 18 June 2006 with permission to remain as a visitor up to 2 July 2006 when he did not depart and instead overstayed and was arrested by police on 20 June 2008. 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 supporters of rival political party Bangladesh Nationalist Party (“BNP”) and/or by the police over a false charge for murder.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bannabari, District Gopalganj, Bangladesh. After leaving school, he got married and became a supporter of political party Awami League (“AL”) which he joined in 1994 as an ordinary member.

3.  In 2003 he was approached by some members of rival BNP to join their party, and when he refused, they made a false charge of murder against him, for which he was arrested and detained by the police for more than a week during which he was tortured.  After he made bail and was released, he continued to be threatened and assaulted by those BNP supporters, he therefore became fearful for his life and fled to Dhaka and eventually departed Bangladesh for Hong Kong, where he overstayed and subsequently raised his torture claim, which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Supplementary Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 30 January 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”).

5.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed by the BNP people or by the police upon his return to Bangladesh due to the absence of any past ill-treatment from them or of any evidence that he was being pursued by the police, that in the absence of any evidence 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 166 million people spread across a vast territory of more than 143,000 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 those BNP people to locate him.

6.  By a Notice of Further Decision dated 21 August 2017 the Director again rejected the applicant’s claim upon receiving and considering further representation from his lawyer 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”).

7.  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 11 February 2015, and for which he attended an oral hearing on 11 September 2015 before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made by his lawyer.  On 28 December 2016 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  On 6 March 2017 the applicant filed his Form 86 under HCAL 65/2017 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 eight 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.   

9.  On 5 January 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of his grounds reasonably arguable, that his intended application had no realistic prospect of success, and that there was no error of law or procedural unfairness in the Board’s decision.

10.  The applicant did not appeal against Deputy Judge Woodcock’s decision, and instead he filed another Form 86 on 15 January 2018 in the proceedings now before me, for which he put forward exactly the same eight grounds for his second application.

11.  At the hearing of his second application before me, he was unable to explain why he should be allowed to make another leave application for judicial review other than merely claiming that he was not satisfied with Deputy Judge Woodcock’s decision.

12.  In the premises the principle of res judicata applies, and it is clearly 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 he failed to obtain leave from the Court in HCAL 65/2017, and also for failing 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.

13.  For these reasons this second leave application for judicial review 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