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HCAL 1086/2017
[2020] HKCFI 2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1086 OF 2017
BETWEEN
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Jum Alie |
Applicant |
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Director of Immigration |
Putative Respondent |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Procedural history
1. This applicant has previously applied for and been refused leave for judicial review by Au J (as he then was) on 19 May 2017 under HCAL 188/2017. That application was in respect of a Decision and Further Decision of the Director of Immigration (“the Director”) dated 4 July and 27 October 2016. It also covered the Decisions of the adjudicator of the Torture Claims Appeal Board on 4 October and 6 December 2016.
2. On 19 December 2016 and 2 January 2017, the applicant made a further claim to the Director, which was refused on 16 January 2017 on the basis that the applicant had failed to provide sufficient evidence to show there has been a significant change of circumstances as raised, when taken together with the material previously submitted in support of his previous claim, which would give his claim a realistic prospect of success.
Leave to apply for judicial review
3. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Director of 16 January 2017, as all other matters have been dealt with. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Director when dealing with his application in order to obtain leave to judicially review them.
Grounds of review
4. There were no grounds of review. The applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
5. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Director considered all of the relevant materials and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.
6. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.
Dated the 12th day of August 2020.
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(Marcus Wong) |
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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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar:
(i) a copy of the sealed judgment or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and
d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and
e) comply with Order 59 of the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 12 August 2020
Jum Alie
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 12 August 2020
Department of Justice
for Director of Immigration
Putative Respondent’s ref. no.:
QA/686/16(CZ)
L/M 15485 in ImmD RA 7/37/C
(formerly RBCZ 9000269/16)
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Interested Party’s ref. no.:
USM 4133/16/7/103/GA27
BOR 5/16/11/5/GA1
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Form CALL-1
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