Alam Mahir v. Ian Candy, Esq., and Another

HCAL 1005/2017

[2018] HKCFI 2068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1005 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a 37-year-old national of India who arrived in Hong Kong on 29 July 2007 with permission to remain as a visitor up to 12 August 2007 when he did not depart and instead overstayed until his was arrested by police on 16 April 2008.  After being referred to the Immigration Department for investigation, he lodged a torture claim and subsequently a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute and/or by the police over a false claim of murder against him.  He was then released on recognizance pending the determination of his claim.

2.By a Notice of Decision dated 24 December 2014 the Director of Immigration (“the Director”) rejected the applicant’s 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.On 2 January 2015 the applicant filed his appeal to the Torture Claims Appeal Boardagainst the Director’s decision, and after attending an oral hearing with legal representation from the Duty Lawyer Service during which he gave evidence and answered questions put to him by the adjudicator for the Board, his appeal was dismissed on 24 March 2017 by the Board essentially on his credibility which also confirmed the Director’s decision.

4.By a Notice of Further Decision dated 17 July 2017 the Director upon receiving and considering further representation from him relevant to his non-refoulement claim again dismissed his 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.On 10 April 2017 the applicant filed his Form 86 under HCAL 125/2017 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 India;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected herself 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 her 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.  

6.His application came before Deputy High Court Judge Woodcock and after an oral hearing it was dismissed by the learned judge on 25 August 2017 after finding no substance in any of his proposed grounds, nor did she find any error of law or procedural unfairness in the decisions of the Director or the Board or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.

7.That decision was never appealed by the applicant who instead filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward exactly the same eight grounds as before all of which had already been found to be without substance and were rejected by the learned judge in that proceedings.

8.In the premises plainly the principle of res judicata applies and this application is clearly an abuse of the court’s process by the applicant.  Accordingly his application is dismissed.

Dated the 21^st 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