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HCAL161/2018
[2019] HKCFI 860
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 161 of 2018
BETWEEN
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Akter Shahana |
Applicant |
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and
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Chan Pik-kiu Michael, Esq.
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Putative
Respondent |
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and |
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Director of Immigration
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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 33 (DOB: 6 March 1986).
2. The Applicant claimed she was a member of the Bangladesh Nationalist Party (“BNP”). She feared he would be harmed or killed by people of the Awami League (“AL”) because she refused to stop working for BNP.
3. The Applicant did not think she would be afforded reasonable state protection in Bangladesh. Nor was internal relocation viable.
4. The Applicant came to Hong Kong to work as domestic helper on 12 February 2014. Her employment contract was prematurely terminated on 21 October 2014. She overstayed in Hong Kong from 5 November 2014. She surrendered to the Immigration Department a month later on 4 December 2014 and lodged a non-refoulement claim on 19 March 2015.
The Director’s decision
5. In his decision dated 31 May 2016, the Director refused the Applicant’s claim with respect to these three applicable grounds: (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].
6. On 6 July 2017, the Director further 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”). The Adjudicator heard her on 17 July 2017.
8. The Adjudicator disbelieved the Applicant’s claim.
9. Even on the Applicant's own account of allegations, the Adjudicator found the complained situation fell short of any risk that warranted non-refoulement protection. In any event, reasonable state protection and internal relocation were available to the Applicant. On 11 August 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
1st Judicial Review
10. On 17 August 2017, the Applicant applied for leave for judicial review. The case number was HCAL524/2017. The Applicant named the Board as respondent and the Director as interested party. Her grounds of application were[5]:
(1) lack of language assistance/procedural impropriety;
(2) error in finding her not credible; and
(3) reliance on outdated country-of-origin information ("COI"), hearsay and information not officially recognised.
11. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 3 January 2018.
12. On 11 May 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 case was not reasonably arguable and the Applicant had no realistic prospect of success. The Judge refused to grant the Applicant leave for judicial review.
2nd Judicial Review
13. Before the Judge rendered her decision in the 1st Judicial review, the Applicant had already reapplied for leave for judicial review on 5 February 2018. This time, the case number was HCAL161/2018. The Applicant named the Adjudicator as respondent and the Director as interested party.
14. In her affirmation dated 5 February 2018, 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.
15. 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.
16. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
17. The Applicant further complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
Court hearing
18. The hearing took place on 16 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
19. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to her grounds. She also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
20. The Applicant was asked why she repeated applying for leave for judicial review. She said the Legal Aid Department told her that her case was over. She wanted to stay in Hong King so she took out the current application.
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].
23. 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 17 August 2017. The case number was HCAL524/2017. Deputy High Court Judge Woodcock heard the Applicant on 3 January 2018.
24. The Judge gave her decision on 11 May 2018 but well before that the Applicant had already filed the 2nd Judicial Review on 5 February 2018. [There is no record the Applicant has appealed against the Judge’s decision in the 1st Judicial Review.]
25. The Applicant held out a number of grounds for her second judicial review application. They were more in number and description (see paragraphs 14-17 above). However, all those complaints either had already been raised in the Applicant's 1st Judicial Review or could have been raised by her in that application.
26. 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 her current application because the Adjudicator represented the Board to deal with the Applicant's appeal.
27. The Applicant must show reasons 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 the 1st Judicial Review.
28. The Applicant failed to justify her 2nd Judicial Review, which was merely a repetition. Her unjustified repetition must be regarded as an abuse of process. The merits of her complaints had been duly considered by the Judge in the 1st Judicial Review. I should not reconsider them.
Conclusion
29. The Applicant fails to justify her repeated application for leave for judicial review. Her application is therefore dismissed.
Dated the 2nd day of April 2019
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(Henry Ng) |
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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: |
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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 2/4/2019
Akter Shahana
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 2/4/2019
Chan Pik-kiu Michael, Esq.
Putative Respondent’s ref. no.:
USM 3892/16/6/82/B537
Director of Immigration
Putative Interested Party’s ref. no.:
INCZ/9002322/17 (formerly RBCZ/11356/15)
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] See the Judge’s decision dated 11 May 2018, para 14.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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