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HCAL 935/2017
[2018] HKCFI 1588
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 935 of 2017
BETWEEN
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Shrestha Krishna |
Applicant |
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and |
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Peter Nguyen, Esq.,
Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 national of Nepal who entered Hong Kong illegally on 23 November 2006 and was arrested by the police on 24 March 2007. After he was referred to the Immigration Department for investigation, he lodged a torture claim on 12 August 2008 on the basis that if he returned to Nepal he would be harmed or killed by the Maoists over a land dispute with his step-grandmother’s family, and upon the commencement of the Unified Screening Mechanism his claim was treated as a non-refoulement claim upon completing a Supplementary Claim Form by him on 11 April 2014 with legal representation from the Duty Lawyer Service.
2. By a Notice of Decision dated 8 August 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 22 August 2014 the applicant brought his appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), and after attending an oral hearing on 20 March 2015 before an adjudicator, his appeal was dismissed by the Board on 13 July 2015 which also confirmed the Director’s decision.
4. On 15 December 2016 the Director invited the applicant 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”), and in the absence of any response from him the Director again rejected his claim on all applicable grounds on 4 January 2017, which decision was affirmed by the Board on 23 February 2017.
5. On 27 February 2017 the applicant filed his Form 86 under HCAL 52/2017 for leave to apply for judicial review of that decision of the Board and for which he put forward eight grounds for his intended challenge, but when he failed to attend the oral hearing of his leave application scheduled on 19 October 2017 and before the court could deliver its decision, the applicant filed another Form 86 in these proceedings on 23 November 2017 again for leave to apply for judicial review of the Board’s decision on essentially the same grounds as before in his first application.
6. On 11 December 2017 his leave application under HCAL 52/2017 was refused by Toh J, and at the subsequent hearing of his leave application in these proceedings before me the applicant claimed never to have received that decision from the court which he explained why he decided to file another Form 86 in these proceedings, which to me cannot be a reason or justification for him to duplicate another set of application for judicial review when at the time of its issue on 23 November 2017 his first application had not even been disposed of, and that if he were not satisfied with that decision, clearly it was not to file another leave application for judicial review given that the principle of res judicata would apply against it, but rather by way of appeal if proper grounds could be found.
7. In the premises and for these reasons this second leave application for judicial review by the applicant is hereby dismissed.
Dated the 17th day of August 2018.
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(NG Ka-wing)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 17 August 2018
Shrestha Krishna
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 August 2018
Peter Nguyen, Esq.,
Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 157/14/8/72/N18
BOR 41/17/1/18/N3
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001213/16 (Formerly RBCZ 1477/08)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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