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HCAL272/2018
[2019] HKCFI 1606
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 272 of 2018
BETWEEN
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Uddin Imtiaz |
Applicant |
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William Lam, 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 38 (DOB: 5 December 1980).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”) because he was a member of the Jamaat-e-Islami.
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 14 June 2013. On 18 December 2013, he was arrested by the Hong Kong police for illegal remaining. He said he entered Hong Kong illegally from China two days earlier. The Applicant raised a non-refoulement claim on 21 December 2013.
The Director’s decision
5. In his decision dated 9 March 2016, 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]. The Director refused the Applicant's claim with respect to those three applicable grounds.
6. In his further decision dated 16 May 2017, the Director refused the Applicant's claim with respect to the last 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 interviewed him on 10 April 2017.
8. The Adjudicator considered the Applicant to be incredible and unreliable. He disbelieved the Applicant's claim.
9. The Adjudicator found that even on the Applicant's account of events, he still failed to establish any risk that warranted non-refoulement protection. The Adjudicator further found reasonable sate protection and internal relocation were available to the Applicant.
10. On 7 July 2017, the Adjudicator refused the Applicant’s claim 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 HCAL378/2017.
12. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 27 October 2017.
13. On 9 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 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 ruling in HCAL378/2017. However, the Applicant on 21 February 2018 reapplied for leave for judicial review. This time, the case number was HCAL272/2018. The Applicant still named the Adjudicator as respondent and the Director as interested party.
Grounds of 2nd Judicial Review
15. 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.
16. 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 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.
17. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
18. The Applicant said the appeal bundle was only given to him a few days before the Board hearing.
19. The Applicant also complained the Director had not screened his claim with respect to BOR2 risk.
20. The grounds of judicial review for the 2nd Judicial Review were the same as those submitted in the 1st Judicial Review.
Court hearing
21. The hearing took place on 14 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
22. The Applicant confirmed all the grounds of judicial review were in the documents. He also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
23. When asked why he reapplied for leave for judicial review, the Applicant simply said he could not go back to Bangladesh because there were lots of problems. He confirmed he had got the Judge’s decision dated 9 February 2018 and he had not appealed against that decision.
Discussion
24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
25. 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]
26. 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 10 July 2017. The case number was HCAL378/2017. The Judge heard him on 27 October 2017 and gave her decision on 9 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, he on 21 February 2018 filed the 2nd Judicial Review (HCAL272/2018).
27. The Judge 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 achieved 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.
28. The Applicant did not appeal against the Judge’s decision. He merely applied for leave for judicial review again. He said he could not go back to his country because there were lots of problems. He gave the same grounds for his second application.
29. The Applicant had not given any good reason to justify his repeated application. He could not ask the court to consider his case again on grounds already submitted or which could have been raised in the 1st Judicial Review. His case had already been duly considered by the Judge then. I should not reconsider it. The Applicant's repeated application is obviously an abuse of process.
Conclusion
30. The Applicant fails to justify his repeated application for leave for judicial review. His application is therefore dismissed.
Dated the 25th 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 25/6/2019
Uddin Imtiaz
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 25/6/2019
William Lam, Esq.
Putative Respondent’s ref. no.:
USM 3290/16/3/95/B437
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2238/15 & RBCZ 9001107/17 (formerly RBCZ 1113/14)
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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