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HCAL339/2018
[2019] HKCFI 1608
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 339 of 2018
BETWEEN
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Haque Azizul |
Applicant |
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Evan Ruth, 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 41 (DOB: 11 March 1978).
2. The Applicant claimed he would be harmed or killed by the Awami League (“AL”). He was a member of the Bangladesh Nationalist Party (“BNP”). He refused to join AL. Also, he had witnessed some AL members murder his friend.
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 February 2016. On 9 March 2016, he was arrested by the Hong Kong police for illegal remaining. He claimed he arrived in Hong Kong that day. The Applicant raised a non-refoulement claim on 13 March 2016.
The Director’s decision
5. In his decision dated 8 November 2016 , 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]. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director 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 interviewed him on 19 May 2017.
7. The Adjudicator disbelieved the Applicant's claim. On 19 July 2017, he refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
1st Judicial Review
8. On 25 July 2017, the Applicant applied for leave for judicial review against the Board and the Director as respondents. The case number was HCAL442/2017.
9. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 17 November 2017.
10. On 23 February 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 ruled the Applicant's complaints were not reasonably arguable. She refused to grant the Applicant leave for judicial review.
2nd Judicial Review
11. There was no appeal against the Judge’s ruling in HCAL442/2017. However, the Applicant on 5 March 2018 reapplied for leave for judicial review. This time, the case number was HCAL339/2018. 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 misdirected himself; 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.
14. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
15. The Applicant said the appeal bundle was only given to him a few days before the Board hearing.
16. The Applicant also complained the Director had not screened his claim with respect to BOR2 risk.
17. Compared to those grounds submitted by the Applicant in his previous application, the grounds of his current application were differently worded. They could be said to be more detailed. However, all the grounds for the 2nd Judicial Review either had been referred to or could have been raised in the 1st Judicial Review.
Court hearing
18. The hearing took place on 14 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
19. 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.
20. When asked why he reapplied for leave for judicial review, the Applicant simply said he could not go back to Bangladesh because it was still dangerous there. He confirmed he had got the Judge’s decision dated 23 February 2018 and he had not appealed against that decision.
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’.[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]
23. 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 25 July 2017. The case number was HCAL442/2017. The Judge heard him on 17 November 2017 and gave her decision on 23 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, he on 5 March 2018 filed the 2nd Judicial Review (HCAL339/2018).
24. 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.
25. 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 it was still dangerous. He gave elaborated grounds for his second application. However, all those grounds either had been referred to or could have been raised in the 1st Judicial Review.
26. The Applicant failed to give any good reason to justify his renewed application. He could not ask the court to consider his case again on grounds already submitted or which could have been submitted in his previous application. His case had already been duly considered by the Judge in the 1st Judicial Review. I should not reconsider it. The Applicant's repeated application is obviously an abuse of process.
Conclusion
27. 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
Haque Azizul
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
Evan Ruth, Esq.
Putative Respondent’s ref. no.:
USM 5247/16/11/186/B678
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1353/16 (formerly RBCZ/11204/16)
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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