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HCAL157/2018
[2019] HKCFI 1603
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 157 of 2018
BETWEEN
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Hossain Mohammad Rahat |
Applicant |
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and |
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Wong Chun-Kong, 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 26 (DOB: 14 September 1992).
2. The Applicant claimed he was a member of the Bangladesh Nationalist Party (“BNP”) and a local leader of the Jubo Dal, which was the youth wing of BNP. He feared he would be harmed or killed by the Awami League (“AL”) and the Bangladesh police or security force.
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 22 November 2013. On 4 December 2013, he intended to enter Hong Kong from China. He claimed he came for sight-seeing. He was refused entry and returned to China. On 29 December 2013, the Applicant was arrested in the Hong Kong waters for illegal entry. On 1 January 2014, he raised a non-refoulement claim.
The Director’s decision
5. In his decision dated 17 March 2016, the Director of Immigration (‘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 21 April 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 him on 24 and 29 May 2017.
8. The Adjudicator found there were implausible and inconsistent features in the Applicant's allegations. He disbelieved the Applicant’s claim. The Adjudicator also considered reasonable state protection and internal relocation were available to the Applicant.
9. On 23 June 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
1st Judicial Review
10. On 6 July 2017, the Applicant applied for leave for judicial review for the first time. The case number was HCAL368/2017. The Applicant named the Adjudicator as respondent and the Director as interested party. His grounds of application were contained in his affirmation dated 6 July 2017.
11. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 25 October 2017.
12. On 26 January 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. The Applicant did not appeal against the Judge’s decision. Rather, he reapplied for leave for judicial review on 2 February 2018. This time, the case number was HCAL157/2018. The Applicant again named the Adjudicator as respondent and the Director as interested party. The grounds of his application were contained in his affirmation dated 2 February 2018. They were the same as those grounds submitted by the Applicant in his previous application.
14. 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 he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
Court hearing
18. The hearing took place on 13 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.
19. The Applicant confirmed he had not appealed against the Judge’s decision because he did not know how.
20. The Applicant also confirmed he had submitted all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. He, however, said he now had new information to support his claim.
21. The Applicant submitted a 7-page written submission dated 13 August 2018 and a bundle containing a number of documents. He explained those documents in Part D of his written submission. In Part E of his submission, the Applicant said the bundle of documents contained examples of how AL persecuted others in Bangladesh.
22. The Applicant produced four more sets of photos/documents to be included in his Bundle (No. 17-20).
23. The Applicant said all the photos and documents were downloaded from the Internet after the 1st Judicial Review.
24. The Applicant said the recent situation in Bangladesh was really dangerous and he could not go back there.
Discussion
25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
26. 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]
27. 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 6 July 2017. The case number was HCAL368/2017. Deputy High Court Judge Woodcock heard the Applicant on 25 October 2017. The Judge gave her decision on 26 January 2018. The Applicant had not appealed against the Judge’s decision in the 1st Judicial Review. He now relied on what he called ‘new information’ to reapply for leave for judicial review but his grounds of application remained the same.
28. The Applicant confirmed that when he appeared before the Director and the Adjudicator, he had submitted all he had to them for their consideration of his non-refoulement claim.
29. The Director and the Adjudicator had duly considered the Applicant's allegations. They found against the Applicant and refused his claim.
30. The Judge in the 1st Judicial Review 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 complaints were not reasonably arguable and the Applicant had no realistic prospect of success. She refused to grant the Applicant leave for judicial review.
31. The Applicant now claimed there was ‘new information’ to support his claim. Some of the documents in the Applicant's bundle were not new but existed before May 2017, when the Adjudicator interviewed the Applicant.
32. Even though some documents like No. 12-16 in the bundle were issued or published after May 2017, they could not really help the Applicant's case as there was a lack of link to the Applicant's own situation.
33. In any event, the Applicant's claim was rejected because the Adjudicator did not find him credible. The Judge in the 1st Judicial Review pointed out the Adjudicator had no fault and had adhered to the high standards of fairness in screening the Applicant’s claim.
34. The Applicant was clearly not satisfied with the decision of the Adjudicator and the Judge. However, he lacked good reason to reapply for leave for judicial review. His current application was actually a repetition of application on the same grounds. That was an abuse of process.
35. The Applicant's complaints had been duly considered by the Judge in the 1st Judicial Review. I should not reconsider them.
Conclusion
36. 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
Hossain Mohammad Rahat
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
Wong Chun-Kong, Esq.
Putative Respondent’s ref. no.:
USM 3328/16/3/133/B440
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1820/15 & RBCZ/9001312/17 (formerly RBCZ/1163/14)
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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