Case Document

100%Judiciary

HCAL162/2018

[2019] HKCFI 1604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 162 of 2018

BETWEEN

	Sheik Razaul	Applicant
	and
	Ian Candy, 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:

consideration of documents only

consideration of documents and oral submission by the Applicant in open court

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 36 (DOB: 25 February 1983).

2.The Applicant claimed he was a member of the Awami League (“AL”). He feared he would be harmed or killed by people of the Bangladesh Nationalist Party (“BNP”).

3.The Applicant did not think he would be afforded reasonable state protection in Bangladesh. Nor was internal relocation viable.

4.The Applicant came to Hong Kong as visitor on 19 October 2006. He was permitted to stay until 2 November 2006. However, he overstayed and was arrested by the police four odd months later on 24 March 2007. The Applicant subsequently lodged a non-refoulement claim.

The Director's decision

5.In his decision dated 23 September 2014, 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 8 February 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 15 March 2017.

8.The Adjudicator found there were inconsistencies and discrepancies in the Applicant’s allegations. He found the Applicant's claim unconvincing and implausible. He did not accept the Applicant's claim as credible.

9.The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. On 16 June 2017, he refused the Applicant’s claim with respect to all the four applicable grounds.

1^st Judicial Review

10.On 13 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 HCAL397/2017.

11.Deputy High Court Judge Woodcock (“the Judge”) set down the matter for hearing on 7 November 2017. The Applicant was absent. The interpreter called the Applicant's mobile phone. The Applicant told the interpreter on the phone that he had received the notice but he forgot the date and he would not be coming to the court that day. The court received no further news from the Applicant.

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 ruled the Applicant's case was not reasonably arguable. She refused to grant the Applicant leave for judicial review.

2^nd Judicial Review

13.There was no appeal against the Judge’s ruling in HCAL397/2017. However, the Applicant on 5 February 2018 reapplied for leave for judicial review. This time, the case number was HCAL162/2018. The Applicant still named the Adjudicator as respondent and the Director as interested party.

Grounds of 2^nd Judicial Review

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 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.

16.The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

17.The grounds of judicial review in the 2^nd Judicial Review were the same as those in the 1^st 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 said he forgot about the scheduled hearing in the previous application HCAL 397/2017. That morning (7 November 2017), a Bengali interpreter called him by telephone. He immediately came and arrived at the High Court Building at 11 am. He called the phone number back. A lady speaking in English simply said he was late. The lady did not tell him where to go or what to do. The Applicant said he did not ask anything but just left the court building.

20.The Applicant admitted he had received the Judge’s decision dated 26 January 2018. He did not appeal. He followed a friend’s advice to reapply for judicial review. The Applicant said he did not know the law well.

21.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.

Discussion

22.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

23.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]

24.On 7 November 2017, the interpreter reported to the Judge that the Applicant said on the phone he had forgot the hearing date and would not be coming to the court that day.

25.Yet, the Applicant told me that after receiving the interpreter’s call on 7 November 2017, he immediately came and arrived at the High Court Building at 11 am. He called the phone number back. This time, a lady speaking in English simply told him he was late. The lady did not tell him where to go or what to do then. The Applicant said he did not ask anything but just left the court building.

26.I do not accept what the Applicant said to me. It was unreasonable and inconsistent with what he told the interpreter on the phone on 7 November 2017. He told the interpreter that he would not be coming to the court that day.

27.The Applicant chose to be absent on 7 November 2017 for no good reason. The Judge was entitled to consider his application on consideration of papers only.

28.The Judge 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.

29.The Applicant did not appeal against the Judge’s decision. He merely reapplied for leave for judicial review. He said he did not know the law. He gave the same grounds for his second application.

30.The Applicant failed to provide any good reason to justify his repeated application.

31.The Applicant could not ask the court to consider his case again on grounds already submitted or which he could have submitted in the 1^st Judicial Review. His case had already been duly considered by the Judge then. I should not reconsider it. The Applicant's renewed application is obviously an abuse of process.

Conclusion

32.The Applicant fails to justify his repeated application for leave for judicial review. His application is therefore dismissed.

Dated the 25^th day of June 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 25/6/2019
Sheik Razaul

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 25/6/2019

Ian Candy, Esq.
Putative Respondent’s ref. no.:
USM 2379/15/10/48/B317

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 529/14 & RBCZ 9000011/17 (formerly RBCZ 161/10)

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).

Cites 4 cases

Cases cited in this judgment