Case Document

100%Judiciary

HCAL208/2018

[2019] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 208 of 2018

BETWEEN

	Bharat Kumar Phagami	Applicant
	and
	Li Wai-chi, 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 the Applicant being absent from 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 Nepal. He is now aged 43 (DOB: 30 January 1976).

2.The Applicant claimed he would be harmed or killed by the relatives of a person called Nuk. Nuk was a member of the Maoist Party. He was killed by the Nepal Army in 2003. Nuk’s relatives thought the Applicant was an informant for the army leading to Nuk’s death.

3.After Nuk’s death, the Applicant left home for safety concern. He left Nepal for Dubai in early 2004 and worked there until 2007.

4.There was a private agreement between the Maoist Party and the Nepal government in 2006. However, the Applicant said Nuk’s family still wanted to seek revenge. After he had returned to Nepal from Dubai in 2007, he was further threatened by Nuk’s brothers.

5.In 2009, the Applicant went abroad again to avoid his enemies. He returned to Nepal in 2012. He was attacked by Nuk’s family. They threatened to kill him. The Applicant managed to escape. He stayed away from home for another 18 months. Then he flew to Germany to seek asylum. His application was refused by the German government. He then came to Hong Kong.

6.The Applicant entered Hong Kong as visitor on 30 January 2014. He was permitted to stay until 6 February 2014. However, he overstayed. He was arrested by the police six months later on 5 August 2014. He raised a non-refoulement claim on the next day.

7.The Applicant never reported Nuk’s relatives to the Nepal police. He said the police would not arrest them.

8.The Applicant said his enemies were still looking for him. Internal relocation was not viable.

The Director

9.The Director of Immigration (“the Director”) did not accept the Applicant faced any real risk that warranted non-refoulement protection. The Director also found that reasonable state protection and internal relocation were available to the Applicant in any event.

10.On 26 April 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].

11.On 13 June 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

12.The Applicant appealed to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).

13.The Adjudicator heard the Applicant on 27 June 2017. He did not find the Applicant credible. He did not accept the Applicant faced any risk that warranted non-refinement protection. The Adjudicator also found reasonable state protection was available to the Applicant in any event.

14.On 29 June 2017, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.

1^st Judicial Review

15.On 27 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 HCAL457/2017.

16.Deputy High Court Judge Woodcock (“the Judge”) set down the case for hearing on 13 October 2017. The Applicant was absent without explanation.

17.On 5 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 and he had no realistic prospects of success. She refused to grant the Applicant leave for judicial review.

2^nd Judicial Review

18.There was no appeal against the Judge’s decision in HCAL457/2017. However, the Applicant reapplied for leave for judicial review on 12 February 2018. This time, the case number was HCAL208/2018. The Applicant again named the Adjudicator as respondent and the Director as interested party.

Grounds of 2^nd Judicial Review

19.In his affirmation, 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.

20.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 Nepal 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.

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

22.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.

23.Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.

24.The grounds of the Applicant's second judicial review application were the same as those stated in his affirmation dated 27 July 2017 for the 1^st Judicial Review.

Court hearing of 2^nd Judicial Review

25.The hearing was scheduled for 28 August 2018. The Applicant was again absent without explanation.

Discussion

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

27.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]

28.The Applicant's claim had been dealt with by the Director and then the Adjudicator. He was not satisfied with their decisions. On 27 July 2017, he applied for leave for judicial review, naming the Adjudicator as respondent and the Director as interested party. The case number was HCAL457/2017.

29.The Applicant was absent from the hearing scheduled before the Judge on 13 October 2017. There was no explanation for his absence. Nevertheless, the Judge still considered his complaints and gave her decision on 5 January 2018.

30.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 case was not reasonably arguable and had no realistic prospects of success. She refused to grant the Applicant leave for judicial review.

31.The Applicant did not appeal against the Judge’s decision. Instead, he reapplied for leave for judicial review. The grounds were the same as those he had put forth in HCAL457/2017. The Judge had dealt with those complaints in her decision dated 5 January 2018.

32.The Applicant could not ask the court to reconsider his case on grounds which had been submitted in the 1^st Judicial Review or which he had not submitted but could have been submitted then.

33.The Applicant gave no good reason for his renewed application for leave for judicial review. His repeated application must be deemed as abuse of process. The Judge had already considered his case in HCAL457/2017. I should not reconsider it in the absence of any good reason.

Conclusion

34.The Applicant cannot 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
Bharat Kumar Phagami

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

Li Wai-chi, Esq.
Putative Respondent’s ref. no.:
USM 3604/16/5/22/N276

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2483/15 & RBCZ 9002006/17 (formerly RBCZ 2596/14)

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).

Cites 3 cases

Cases cited in this judgment