MD BABU MIA v. WESLEY WONG, ESQ

HCAL 907/2017

[2018] HKCFI 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 907 of 2017

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;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The applicant is a national of Bangladesh who arrived in Hong Kong on 5 April 2009 with permission to remain as a visitor up to 13 April 2009 when he did not depart and instead overstayed until he was arrested by the police on 12 May 2009.  After he was referred to the Immigration Department for investigation he raised a torture claim on 15 May 2009 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”) which was subsequently considered by the Department as a non-refoulement claim under the unified screening mechanism and was rejected by the Director of Immigration (“the Director”) on 27 May 2015 under all applicable grounds.

2.  By a Notice of Further Decision dated 26 October 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 the Hong Kong Bill of Rights Ordinance (“HKBOR”) including right to life under Article 2 (“BOR 2 risk”).

3.  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, for which he filed his appeal on 8 June 2015 and attended an oral hearing on 1 December 2016 before the Board.  On 2 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

4.  On 13 June 2017 the applicant filed his Form 86 under HCAL 290/2017 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 ground for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin Information (“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 Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh 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.  

5.  His leave application came before Deputy Judge Woodcock for hearing on 18 August 2017 when the applicant failed to appear and the learned judge proceeded to deal with his application on papers, and on 8 September 2017 the applicant’s leave application was refused.

6.  However, on 17 November 2017 the applicant filed another Form 86 in these proceedings now before me for leave to apply for judicial review again of the Board’s decision, and in his supporting affirmation of the same date he put forward eight grounds which are word for word exactly identical with those as set out above in his application before Deputy Judge Woodcock in HCAL 290/2017.

7.  Not surprisingly, his subsequent application for legal aid for these proceedings was refused by the Legal Aid Department, and when his Legal Aid Appeal has been fixed for hearing on 8 June 2018, he sought an adjournment of the hearing of his leave application pending the outcome of his appeal.     

8.  Clearly the principle of res judicata applies and it is an abuse of the court process by the applicant after his application has already been properly disposed of by Deputy Judge Woodcock in HCAL 290/2017. Accordingly I refused his request to postpone the hearing of his leave application, for which he did attend as scheduled but failed to give any explanation or reason why he should be allowed to make another application for judicial review of the Board’s decision.  In the circumstances his leave application is dismissed.

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