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HCAL362/2018
[2019] HKCFI 1609
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 362 of 2018
BETWEEN
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Md Riat |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 Josiah Lam:
Application for leave for judicial review be dismissed.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. He is now aged 33 (DOB: 1 January 1986).
2. The Applicant claimed he would be harmed or killed by members and supporters of the Awami League (“AL”). He also feared he would be arrested by the Bangladesh police due to an arson accusation.
3. The Applicant did not think he would be afforded reasonable state protection in Bangladesh. Nor was internal relocation viable.
4. The Applicant left Bangladesh for China on 19 October 2012. On 19 January 2013, he was arrested by the police in Hong Kong for illegal remaining. The Applicant claimed he entered Hong Kong illegally two months ago on 13 November 2012. He raised a non-refoulement claim on 11 March 2014.
The Director’s decision
5. In his decision dated 26 May 2016, the Director of Immigration (“the Director”) did not accept the Applicant faced any (i) risk of torture,[1] (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. He refused the Applicant's claim with respect to those three applicable grounds.
6. In his further decision dated 26 September 2017, the Director refused the Applicant's claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4].
The Board's decision
7. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) only against the Director's decision. The Adjudicator interviewed him on 8 May 2017. On 24 August 2017, the Adjudicator refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. (As to the Director's further decision on BOR2 risk dated 26 September 2017, there was no appeal.)
8. The Adjudicator did not reject the Applicant's allegations. However, she found that the Applicant's claimed risk was only a personal grudge. She also found internal relocation was viable in the Applicant's case in any event. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk and BOR3 risk. She refused the Applicant's claim with respect to those three applicable grounds.
1st Judicial Review
9. On 4 September 2017, the Applicant applied for leave for judicial review. He named the Board and the Director as respondents. The case number was HCAL578/2017.
10. High Court Judge Mrs. Justice Campbell-Moffat (“the Judge”) heard the Applicant on 2 February 2018.
11. On 2 March 2018, the Judge gave her decision. She had considered the Applicant's case under ‘rigorous examination and anxious scrutiny’. She found the Board’s decision was eminently reasonable. The Adjudicator made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. The Judge ruled the Applicant's case was not reasonably arguable. She refused to grant the Applicant leave for judicial review.
12. There was no appeal of the Judge’s ruling in HCAL578/2017.
2nd Judicial Review
13. However, the Applicant on 7 March 2018 reapplied for leave for judicial review. The case number was HCAL362/2018. This time, the Applicant named the Board as respondent and the Director as interested party.
Grounds of application in 2nd Judicial Review
14. The Applicant said he was given the appeal bundle only seven days before the Board hearing. He complained he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.
Court hearing
15. The hearing was scheduled for 15 August 2018. The Applicant was absent. He told the interpreter on the phone that he had not received the notice of hearing although the checked address was correct. He said he was busy. He was going to a friend’s place and could not come to the court that day.
16. The court has not heard from the Applicant since then.
Discussion
17. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
18. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [6]
19. The Applicant's claim had been dealt with by the Director and the Adjudicator. He applied for leave for judicial review for the first time on 4 September 2017. The case number was HCAL578/2017. The Judge heard the Applicant on 2 February 2018.
20. The Judge gave her decision on 2 March 2018. The Applicant did not appeal against the Judge’s decision. Instead, he on 7 March 2018 filed the 2nd Judicial Review application (HCAL362/2018).
21. The Applicant did not explain in his affirmation why he repeated applying for leave for judicial review. He merely said his previous application was refused by the Judge ‘due to lack of presentation’[7]. That was not correct. The Applicant presented a number of complaints in his previous affirmation dated 4 September 2017. The Judge heard him in court on 2 February 2018. The Applicant clearly had sufficient opportunity to present his case in the 1st Judicial Review.
22. The grounds in the Applicant's current application were different from those presented in the 1st Judicial Review. However, the ‘new’ grounds could have been included in his previous application in the 1st Judicial Review. They were really nothing new. The Applicant failed to give any good reason to justify why he had not done so but only raised those grounds now.
23. The Applicant must show good reason to justify a repeated application for leave for judicial review. He could not simply ask the court to consider his case again on such grounds already submitted or which could have been submitted in the 1st Judicial Review.
24. The Applicant failed to justify his 2nd Judicial Review, which was merely a repetition. His unjustified repetition must be regarded as an abuse of process. His case had been duly considered by the Judge in the 1st Judicial Review. I should not reconsider it.
Conclusion
25. The Applicant fails to justify his repeated application for leave for judicial review. His application is therefore dismissed.
Dated the 28th day of June 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 28/6/2019
Md Riat
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 28/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3864/16/6/54/B528
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 504/16 (formerly RBCZ/3000480/14)
& RBCZ/9001598/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 219/2018 [2018] HKCA 570, para 14(1).
[7] The Applicant's affirmation dated 7 March 2018, para 8.
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