|
HCAL332/2018
[2019] HKCFI 1607
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 332 of 2018
BETWEEN
|
Akter Salma |
Applicant |
|
and |
|
|
Wong Hing-chun, Esq. |
Putative Respondent |
|
and |
|
|
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. She is now aged 31 (DOB: 12 December 1987).
2. The Applicant claimed she would be harmed or killed by her husband Molla and some people of the Awami League (“AL”). She said she was actively affiliated with the Bangladesh Nationalist Party (“BNP”).
3. The Applicant came to Hong Kong to work as domestic helper on 11 February 2014. Her contract was terminated prematurely on 12 April 2014. She overstayed from 27 April 2014 and was arrested on 24 May 2014. She lodged a non-refoulement claim on 31 May 2014.
The Director’s decision
4. In his decision dated 29 October 2015, 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. The Director refused the Applicant's claim with respect to those three applicable grounds.
5. In his further decision dated 24 October 2016, 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
6. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Adjudicator interviewed her on 14 November 2016.
7. The Adjudicator had doubts about the Applicant's allegation. Even on the Applicant's account of events, the Adjudicator found her complained situation was only a case of domestic violence rather than political persecution. The Adjudicator did not find there was any torture risk, persecution risk, BOR2 risk or BOR3 risk. She was satisfied reasonable sate protection and internal relocation were available to the Applicant in any event.
8. The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. On 6 July 2017, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds.
1st Judicial Review
9. On 18 July 2017, the Applicant applied for leave for judicial review. She named the Adjudicator as respondent and the Director as interested party. The case number was HCAL421/2017.
10. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 9 November 2017.
11. On 23 February 2018, the Judge gave her decision. She had considered the case under ‘rigorous examination and anxious scrutiny’. She found the Board’s decision was not Wednesbury unreasonable. 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 HCAL421/2017.
2nd Judicial Review
13. However, the Applicant on 2 March 2018 reapplied for leave for judicial review. The case number was HCAL332/2018. Again, the Applicant named the Adjudicator as respondent and the Director as interested party.
Grounds of 2nd Judicial Review
14. The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
15. The Applicant accused the Adjudicator misdirected herself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
16. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
17. The Applicant said the appeal bundle was only given to her a few days before the Board hearing.
18. The Applicant also complained the Director had not screened her claim with respect to BOR2 risk.
19. Apart from the extra ground that the Adjudicator misdirected herself in law, the other grounds of judicial review for the 2nd Judicial Review were the same as those submitted in the 1st Judicial Review.
Court hearing
20. The hearing took place on 13 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
21. The Applicant confirmed all the grounds of judicial review were in the documents. She also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
22. The Applicant was asked why she repeated applying for leave for judicial review. She said there were still problems in her country and it was dangerous for her to go back. The Applicant complained the Judge had not considered her case well.
Discussion
23. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
24. 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]
25. The Applicant's claim had been dealt with by the Director and the Adjudicator. She applied for leave for judicial review for the first time on 18 July 2017. The case number was HCAL421/2017. Deputy High Court Judge Woodcock heard the Applicant on 9 November 2017.
26. The Judge gave her decision on 23 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, she on 2 March 2018 filed the 2nd Judicial Review (HCAL332/2018).
27. The Applicant was asked why she repeated applying for leave for judicial review. She said there were still problems in her country and it was dangerous for her to go back. The Applicant complained the Judge had not considered her case well.
28. If the Applicant was not satisfied with the Judge’s decision, she could have appealed within the prescribed time. She did not. Rather she applied for leave for judicial review again.
29. The Applicant raised certain complaints in the 2nd Judicial Review. Most of the complaints had been raised in the 1st Judicial Review. There was only one extra ground. The Applicant now complained the Adjudicator misdirected herself in law. However, that allegation could certainly have been raised in her previous application.
30. The Applicant must show good reason to justify a renewed application for leave for judicial review. She could not simply ask the court to consider her case again on such grounds already submitted or which could have been submitted in her previous application.
31. The Applicant failed to justify her repeated application. Her unjustified repetition must be regarded as an abuse of process. Her case had been duly considered by the Judge in the 1st Judicial Review. I should not reconsider it.
Conclusion
32. The Applicant fails to justify her repeated application for leave for judicial review. Her application is therefore dismissed.
Dated the 25th day of June 2019
|
(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
|
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 25/6/2019
Akter Salma
Applicant’s ref. no:
Nil.
|
|
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 25/6/2019
Wong Hing-chun, Esq.
Putative Respondent’s ref. no.:
USM 2549/15/11/61/B335
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 40/15 & RBCZ 9000352/16 (formerly RBCZ 2079/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
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).
|