|
HCAL340/2018
[2019] HKCFI 674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 340 of 2018
BETWEEN
|
Shakeel Muhammad |
Applicant |
|
and |
|
|
Kevin Anthony Browne, Esq. |
Putative Respondent |
|
and |
|
|
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:
Leave to apply for judicial review be dismissed.
Observations for the Applicant
Background
1. The Applicant is a national of Pakistan. He is now aged 35 (DOB: 1 February 1984).
2. The Applicant claimed he would be harmed or killed by his maternal uncle Khan due to a land dispute.
3. The Applicant did not think he would be afforded reasonable state protection in Pakistan. Nor was internal relocation viable.
4. The Applicant left Pakistan for China on 27 November 2013. On 30 November 2013, he was arrested by the Hong Kong police for illegal remaining. He claimed he just sneaked into Hong Kong from China. The Applicant raised a non-refoulement claim on 8 December 2013.
The Director
5. In his decision dated 2 February 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 9 February 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
7. The Applicant appealed to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).
8. The Adjudicator (Kevin Anthony Browne, Esq.) heard the Applicant on 21 February 2017. 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. There was no involvement of state actor. The complained situation was only a private dispute, not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had not been inflicted with ill-treatment to a minimum level of severity. In any event, internal relocation was applicable to the Applicant.
9. On 14 July 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
1st Judicial Review
10. On 1 August 2017, the Applicant applied for leave for judicial review. The case number was HCAL473/2017. The Applicant named the Adjudicator as respondent and the Director as interested party. The grounds of application were contained in his affirmation dated 1 August 2017 and summarised in pages 15-16 thereof. There were eight grounds.
11. Deputy High Court Judge Woodcock (“the Judge”) heard that application on 22 November 2017.
12. On 9 February 2018, the Judge gave her decision. The judgment of HCAL473/2017 named the Board as respondent and the Director as interested party. 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 adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. The Judge ruled the Applicant's claim was not reasonably arguable and he had no realistic prospect of success. She refused to grant the Applicant leave for judicial review.
2nd Judicial Review
13. The Applicant did not appeal against the Judge’s decision in HCAL473/2017. Instead, he on 5 March 2018 reapplied for leave for judicial review. The case number was HCAL340/2018. Again, the Applicant named the Adjudicator as respondent and the Director as interested party.
14. In Form 86 and his affirmation dated 5 March 2018, the Applicant stated his grounds of application. In pages 23-25 of Form 86, there were nine grounds summarised. Grounds 2-9 were the same as Grounds 1-8 in pages 15-16 of the Applicant's previous affirmation. The extra ground in the current application was Ground 1, which alleged the Adjudicator misdirected himself in law.
Court hearing
15. The hearing took place on 17 August 2018. The Applicant was in person. An Urdu interpreter provided service in court.
16. The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds. He also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
17. The Applicant was asked why he repeated applying for leave for judicial review. He said he did not know the law in Hong Kong. He did not know the appeal process. A friend told him to take out the current application so he followed his friend’s advice. He admitted it was the same application.
Discussion
18. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
19. 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]
20. The Applicant's non-refoulement claim had been dealt with by the Director and the Adjudicator. He applied for leave for judicial review for the first time on 1 August 2017. The case number was HCAL473/2017. Deputy High Court Judge Woodcock heard the Applicant on 22 November 2017. In her decision dated 9 February 2018, the Judge refused the Applicant's 1st Judicial Review. The Applicant did not appeal but applied for leave for judicial review again (2nd Judicial Review) on 5 March 2018.
21. The Applicant held out a number of grounds in the 2nd Judicial Review. Most of them were the same as the grounds he had presented in the 1st Judicial Review. The ‘extra’ ground (Ground 1) alleged the Adjudicator misdirected himself in law by taking into account “that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.”
22. The Adjudicator did not direct himself as the Applicant alleged. The Adjudicator merely said, and rightly so, that the Applicant had not been inflicted with ill-treatment to a minimum level of severity. It was one of the considerations for his conclusion that the Applicant failed to establish any risk that warranted non-refoulement protection. In any event, such ‘additional’ ground of complaint could have been included in the Applicant's 1st Judicial Review. The Applicant cannot raise a new application on grounds previously submitted or ‘additional’ grounds which could have been submitted in the previous application.
23. The Applicant failed to show any special circumstances to justify his 2nd Judicial Review, which was merely a repetition of the previous one. His unjustified repetition must be regarded as an abuse of process.
Conclusion
24. The Applicant fails to justify his renewed or repeated application for leave for judicial review. I refuse to grant him leave. His application is therefore dismissed.
Dated the 18th day of March 2019
|
(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
|
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 18/3/2019
Shakeel Muhammad
Applicant’s ref. no:
Nil.
|
|
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 18/3/2019
Kevin Anthony Browne, Esq.
Putative Respondent’s ref. no.:
USM 3108/16/2/74/P832
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1866/15 & RBCZ 9000176/17 (formerly RBCZ 1003/14)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 219/2018 [2018] HKCA 570, para 14(1).
|