Sheik Md Mokter v. William Lam, Esq and Another

HCAL 941/2017

[2018] HKCFI 1600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 941 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 dismissed.

Observations for the Applicant:

1.The applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally and was arrested by the police on 14 March 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 19 March 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).   

2.By a Notice of Decision dated 18 November 2015 the Director of Immigration (“the Director”) rejected his claim on all the 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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.By a Notice of Further Decision dated 1 November 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts 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”).

4.The applicant then brought his appeal to the Torture Claims Appeal Board (“the Board”) against those decisions of the Director, and for which he attended an oral hearing on 12 December 2016 before the Board but he declined to give any evidence or to answer any question from the adjudicator for the Board.  On 8 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 20 February 2017 the applicant filed his Form 86 under HCAL 44/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward eight grounds for his intended challenge.  His application was refused by Yau J on 22 December 2017.

6.However, the applicant has now filed another Form 86 in these proceedings before me again for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he set out exactly the same eight grounds as before when none of which was found by His Lordship to be reasonably arguable to support his intended application with any realistic prospect of success, and at the hearing of his leave application before me he was unable to provide any reason why he should be allowed to have another go with his application. 

7.In the premises I find this second application of the applicant a blatant abuse of the court process, and with his earlier application under HCAL 44/2017 already dealt with and disposed of before another court, and in applying the principle of res judicata, I accordingly dismissed his application.

Dated the 7^th day of September 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