TAMANG BHIM BAHADUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 319/2020

[2020] HKCFI 1344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 319 of 2020

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review struck out and dismissed.

Observations for the Applicant:

1.  The Applicant is a national of Nepal who arrived in Hong Kong on 16 January 2014 with permission to remain as a visitor up to 19 January 2014 when he did not depart and instead overstayed in Hong Kong, and upon his arrest by the police he raised a non‑refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by supporters of rival political party Communist Party of Nepal (“Maoist”).     

2.  By a Notice of Decision dated 28 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 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 31 May 2017 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.  On 6 September 2017 the Applicant’s appeal to the Torture Claims Appeal Board (“the Board”) was dismissed by the Board which also confirmed the Director’s decisions. 

5.  On 21 September 2017 the Applicant filed his Form 86 under HCAL 654/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  lack of legal representation for his appeal to the Board;

(2)  lack of language assistance for translating his non-refoulement claim for him to find out if the interpreter had translated the basis of his claim properly which could potentially lead to injustice;

(3)  no reasoning given by the Director for rejecting his BOR 2 claim; and

(4)  lack of fair hearing for his BOR 2 claim.   

6.  On 4 May 2018 I refused his leave application upon finding none of his grounds reasonably arguable, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions or any failure on their part to apply high standards of fairness in assessing his claim, and that there was no reasonable prospect of success in his intended challenge.

7.  The Applicant then lodged an appeal to the Court of Appeal against that decision. On 27 September 2018 his appeal was dismissed, while his subsequent application for leave to appeal to the Court of Final Appeal was also refused on 3 December 2018 by the Court of Appeal.

8.  More than one year later, on 5 March 2020 the Applicant filed another Form 86 in these proceedings again for leave to apply for judicial review of the same decision of the Board, and in his affirmation he merely repeated his claim that he would be killed if refouled to his home country.

9.  Clearly the principle of res judicata applies, and that it is an abuse of process for the Applicant to re-litigate his case by bringing a second judicial review in respect of the same Board’s decision after he failed to obtain leave from this court under HCAL 654/2017, and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.      

10.  For these reasons this second leave application for judicial review of the Board’s decision by the Applicant is hereby struck out and 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

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