Sujan Gazi v. Torture Claims Appeal Board

HCAL 910/2017

[2018] HKCFI 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 910 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a national of Bangladesh who entered Hong Kong illegally on 27 December 2011 when he was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised his torture claim on 31 December 2011, and upon the commencement of the unified screening mechanism his claim was taken to be a non-refoulement claim for which he subsequently completed his Non-refoulement Claim Form on 10 July 2015 with legal representation from the Duty Lawyer Service.  His claim was rejected by the Director of Immigration (“the Director”) on 17 February 2016.

2.The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision but his appeal was dismissed on 10 March 2017 by the Board which also confirmed the Director’s decision.

3.On 16 June 2017 the applicant filed a Form 86 under HCAL 302/2017 for leave to apply for judicial review of the Board’s decision which was out of time by 6 days but for which he did not take out any application for extension of time nor provide any reason for the delay, and in his supporting affirmation of the same date he set out eight grounds for his intended application for judicial review.

4.On 8 September 2017 and after hearing the applicant in person Deputy Judge Woodcock refused to grant any extension of time to his application, but nevertheless also went on to find no merits in his proposed grounds for his intended application and refused his leave application.   

5.On 20 November 2017 the applicant filed another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision, and again in his supporting affirmation of the same date he set out eight grounds which are identical to those stated for his leave application before Deputy Judge Woodcock under HCAL 302/2017.

6.At the oral hearing the applicant confirmed that the eight grounds for his leave application now before me are exactly the same as those stated in his earlier leave application under HCAL 302/2017 and which had already been dealt with and refused by Deputy Judge Woodcock on 8 September 2017, and that he was unable to give any reason why he should be allowed to make another application before me.  Clearly the principle of res judicata applies and that the applicant’s present leave application is an abuse of the court process.  I accordingly refuse his application.

Dated the 11^th day of May 2018.

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