Rasel v. William Lam, Esq.,

HCAL 912/2017

[2019] HKCFI 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 912 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 29 December 2013 and was arrested by police on the same date.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”).

2.By a Notice of Decision dated 19 February 2016 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 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”).

3.By a Notice of Further Decision dated 28 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 which may be 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.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 he filed on 2 March 2016, and for which he attended an oral hearing on 14 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 3 April 2017 the applicant filed his Form 86 under HCAL 115/2017 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  that it was procedurally unfair when the hearing bundle was given to him just six days before the scheduled appeal hearing with the majority of documents in English that there was insufficient time for him to prepare for the hearing when he was unrepresented and with limited skills in English. 

6.On 20 October 2017 Deputy High Court Judge Woodcock refused leave to his application after finding none of his proposed grounds reasonably arguable and no realistic prospect of success in his intended application.

7.The applicant did not appeal against that decision but instead on 20 November 2017 issued 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 of the same date he put forward various grounds which are either essentially the same or similar to those as before but dressed somewhat differently such as procedural unfairness or irrationality in the Board’s decision and that the hearing bundle was given to him just a few days before his appeal hearing, all of which had already been rejected by the Court in his previous application, or other grounds such as the Board’s failure to take proper account or make sufficient enquiry into COI or to make findings as to violations of human rights in Bangladesh and the efficiency of its state protection which could have been advanced in his previous application but were not, and for which he did not provide any explanation or reasons as to why they should now be entertained or considered by this Court.

8.In any event they are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant and are wholly without any basis or merits, and which would likewise be similarly rejected by the learned judge as not reasonably arguable had they been advanced by the applicant in his previous application.

9.At his oral hearing the applicant was unable to explain why he should be allowed to make a second application after his previous one had already been refused, and that he merely would like more time to stay in Hong Kong until 2019 when there would be another general election in Bangladesh when hopefully the situation at home would improve and that his life would no longer be at risk, which of course cannot be accepted as valid reasons for his second application now before me. 

10.In the circumstances clearly the principle of res judicata applies and that this second application is an abuse of the court process by the applicant.  Accordingly his application is hereby dismissed.

Dated the 18 day of January 2019.

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