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HCAL178/2018
[2019] HKCFI 869
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 of 2018
BETWEEN
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Ahammed Md Robin |
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 32 (DOB: 6 July 1986).
2. The Applicant claimed he would be harmed or killed by people of the Awami League (“AL”).
3. The Applicant said he became a secretary of the Jubo Dal (“JD”), which was the youth wing of the Bangladesh Nationalist party (“BNP”). He refused to join AL. Since early 2014, the AL people had harassed the Applicant and his family. They threatened to kill him.
4. In March 2014, the Applicant left Bangladesh for India to seek asylum. He returned a few days later because his father told him the problem was over. However, the threats continued after the Applicant had returned to the country.
5. The Applicant left Bangladesh again on 11 July 2014. This time, he went to China. On 15 July 2014, the Applicant entered Hong Kong from China illegally. He was arrested by the police that day. He raised a non-refoulement claim on 19 July 2014.
6. The Applicant did not think he would be afforded state protection in Bangladesh. Nor was internal relocation viable.
The Director’s decision
7. In his decision dated 26 July 2016, the Director did not accept the Applicant faced any (i) risk of torture,[1] (ii) risk of persecution[2] or (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]. He refused the Applicant's claim with respect to those three applicable grounds.
8. On 11 May, 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
9. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).
10. The Adjudicator found there were inconsistent and implausible features in the Applicant's claim. He did not find the Applicant credible. The Applicant failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 22 June 2017, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
1st Judicial Review
11. On 10 July 2017, the Applicant applied for leave for judicial review. He named the Adjudicator as respondent and the Director as interested party. The case number was HCAL379/2017.
12. Deputy High Court Judge Woodcock heard the Applicant on 27 October 2017.
13. On 26 January 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 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 found the Applicant's complaints were not reasonably arguable. She refused to grant the Applicant leave for judicial review.
2nd Judicial Review
14. There was no appeal against the Judge’s decision in HCAL379/2017. Instead, the Applicant reapplied for leave for judicial review on 7 February 2018. This time, the case number was HCAL178/2018. The Applicant named the Board as respondent and the Director as interested party.
Grounds of application in 2nd Judicial Review
15. The Applicant complained the appeal bundle was only given to him on 1 June 2017, seven days before the Board hearing scheduled for 8 June 2017. There was no translation of the documents. The Applicant complained he was not legally represented then and he had only limited skill in English. He did not have the means to hire an interpreter for assistance. He said he could not prepare his appeal well and that affected his performance before the Adjudicator. The Applicant complained the Adjudicator did not arrange for an interpreter to interpret the documents to him.
16. The Applicant said his previous application for leave for judicial review was refused by the Judge ‘due to lack of presentation’[5]. He wanted another judge to consider his case again.
Court hearing of 2nd Judicial Review
17. The hearing took place on 22 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
18. The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents. He also confirmed he had submitted all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.
19. I asked the Applicant whether there existed exceptional circumstances for him to apply for leave for judicial review again. The Applicant said there was still risk in Bangladesh. His enemies were looking for him and he could not go back at the moment.
20. I asked the Applicant what he meant by ‘lack of presentation’ in his previous application. He replied ‘Maybe another judge can consider my case again’.
Discussion
21. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
22. 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’.[6] 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.” [7]
Repeated application for leave for judicial review
23. The Applicant's claim had been dealt with by the Director and the Adjudicator. He was not satisfied with their decision. He applied for leave for judicial review on 10 July 2017. He named the Adjudicator as respondent and the Director as interested party. The case number was HCAL379/2017. Deputy High Court Judge Woodcock heard the Applicant and gave her decision on 26 January 2018. She refused to grant leave to the Applicant.
24. The Applicant said he failed in his previous application due to ‘lack of presentation’. That was not correct. Although the Applicant was not legally represented before the Judge on 27 October 2017, he was present in court then and answered the Judge’s inquiry. He had also filed a detailed affirmation to the Judge setting out his complaints.
25. In the current application, the Applicant had also filed an affirmation, which contained the same complaints as found in his previous affirmation dated 10 July 2017 for the 1st Judicial Review.
26. The Judge had considered the Applicant's complaints 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 claim. The Judge found the Applicant's complaints were not reasonably arguable. She refused to grant the Applicant leave for judicial review.
27. The Applicant reapplied for leave for judicial review on repeated grounds. He could not justify his current application. He simply wanted another judge to consider his case again. Such repeated application must be deemed as an abuse of process. The Judge in the 1st judicial Review had duly considered his complaints. I should not reconsider them in the absence of any justification.
Conclusion
28. The Applicant cannot justify his repeated application for leave for judicial review. His application is therefore dismissed.
Dated the 4th day of April 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 4/4/2019
Ahammed Md Robin
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 4/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4322/16/8/41/B590
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 354/16 & RBCZ 9001624/17 (formerly RBCZ 2488/14)
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] The Applicant's affirmation dated 7 February 2018, para 8.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
Court
Procedural posture
Issues
Holdings
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Disposition
Key citations
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