Mithun Monshe v. Yu Cheuk Man, Esq.

Case No.HCAL 908/2017[2018] HKCFI 223

Court

High Court CFI

Date02 Feb 2018

Judge—

Case Document

100%Judiciary

HCAL 908/2017

[2018] HKCFI 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 908 of 2017

BETWEEN

	MITHUN MONSHE	Applicant
	and
	YU Cheuk-man, ESQ.	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 counsel for the Applicant being absent / in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a national from Bangladesh who arrived in Hong Kong on 4 April 2009 as a visitor but overstayed and was arrested on 5 May 2009. He filed a CAT claim with the Immigration Department several days thereafter on the basis that he would be harmed or killed by members of the Awami League if he were refouled to Bangladesh because he was a supporter and member of the Bangladesh Nationalist Party. His claim was assessed and dismissed by the Director of Immigration on 30 December 2014.

2.The applicant appealed to the Torture Claims Appeal Board and his appeal was also dismissed by the Board on 28 December 2016. He then filed a notice of application for leave to apply for judicial review on 2 May 2017 under HCAL 170/2017 with an affirmation in support and requested for an oral hearing. His application came before Deputy Judge Woodcock who set the hearing on 11 August 2017 but the applicant was absent. The judge nevertheless proceeded to consider the application, found that it was out of time for which the applicant had not provided any explanation, refused to extend time, but went on to assess his claim and observed that it was not reasonably arguable and had no realistic prospect of success, she therefore refused leave for judicial review on 25 August 2017.

3.Despite that the applicant on 17 November 2017 filed another notice of application for leave to apply for judicial review of the same decision of the Board of 28 December 2016 which is now before me. Clearly his leave application had earlier been already dealt with by Deputy Judge Woodcock under HCAL 170/2017 referred to above, that the principle of res judicata applies, and that what the applicant is doing with this application is an abuse of the court process. This application is accordingly dismissed.

Dated the 2nd day of February 2018.

	(Gloria NG)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 2 February 2018 MITHUN MONSHE Applicant’s ref. no.: Nil.		Sent to the Putative Respondent/the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 February 2018 YU Cheuk-man, ESQ. Putative Respondent’s ref. no.: USM703/15/1/55/B119 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 468/14 (formerly RBCZ 1186/09) RBCZ 9000864/17 Department of Justice, Senior Assistance Law Office (Civil Law) (Civil Litigation Unit 2)

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