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HCAL598/2017
[2019] HKCFI 1612
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 598 of 2018
BETWEEN
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Chayal Mahabub |
Applicant |
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Gregory Brock, Esq. |
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 48 (DOB: 25 November 1970).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”) because he was associated with the Bangladesh Nationalist Party (“BNP”). BNP and AL were in rivalry. The Applicant alleged the AL people had targeted him.
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 22 February 2013. He entered Hong Kong illegally from China on 25 November 2013. He was arrested on 26 November 2013 and raised a non-refoulement claim on 30 November 2013.
The Director’s decision
5. The Director of Immigration (“the Director”) did not accept the Applicant faced any (i) risk of torture,[1] (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. On 5 December 2016, he refused the Applicant's claim with respect to all the four applicable grounds.
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 found there were inconsistent features in the Applicant's allegations. He did not accept the Applicant faced any risk that warranted non-refoulement protection. On 19 May 2017, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds.
1st Judicial Review
7. On 29 May 2017, the Applicant applied for leave for judicial review. He named the Board and the Director as respondents. The case number was HCAL249/2017.
8. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 8 August 2017.
9. On 18 August 2017, 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.
10. There was no appeal of the Judge’s ruling in HCAL249/2017.
2nd Judicial Review
11. However, the Applicant on 7 September 2017 reapplied for leave for judicial review. This time, the case number was HCAL598/2017. The Applicant named the Adjudicator as respondent and the Director as interested party.
Grounds of 2nd Judicial Review
12. The Applicant complained the Adjudicator unlawfully fettered his 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.
13. The Applicant accused the Adjudicator 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 violation 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.
14. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
15. The Applicant further complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
Court hearing
16. The hearing took place on 13 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
17. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.
18. The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
19. The Applicant was asked why he repeated applying for leave for judicial review. He said he did not want to go back to his country as there were still lots of problems and dangers there.
Discussion
20. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
21. 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]
22. 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 29 May 2017. The case number was HCAL249/2017. Deputy High Court Judge Woodcock heard the Applicant on 8 August 2017.
23. The Judge gave her decision on 18 August 2017. The Applicant did not appeal against the Judge’s decision. Instead, he on 7 September 2017 filed the 2nd Judicial Review (HCAL598/2017).
24. The Applicant held out a number of grounds for his second judicial review application. They were more in number and description. However, all those complaints either had already been raised in the Applicant's previous application or could have been raised by him then.
25. In the 2nd Judicial Review, the Applicant named the Adjudicator as respondent instead of the Board. However, that made no difference between the Applicant's previous application and his current application because the Adjudicator represented the Board to deal with the Applicant's appeal.
26. The Applicant must show good reason to justify a renewed 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.
27. The Applicant failed to justify his 2nd Judicial Review application, 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
28. 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
Chayal Mahabub
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
Gregory Brock, Esq.
Putative Respondent’s ref. no.:
USM 5542/16/12/189/B698
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1788/15 (formerly RBCZ 954/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 219/2018 [2018] HKCA 570, para 14(1).
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