Case Document

100%Judiciary

HCAL363/2018

[2019] HKCFI 1610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 363 of 2018

BETWEEN

	Bapari Md Shahin	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	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 28 (DOB: 1 January 1991).

2.The Applicant claimed he would be harmed or killed by members and supporters of the Awami League (“AL”). He also feared he would be arrested by the Bangladesh police due to some false accusations.

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 15 July 2014. On 17 July 2014, he was arrested by the police in Hong Kong for illegal remaining. The Applicant claimed he just entered Hong Kong that day. He raised a non-refoulement claim on 20 July 2014.

The Director’s decision

5.On 21 November 2016, the Director of Immigration (“the Director”) 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 1 June 2017.

7.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 23 June 2017, she refused the Applicant's claim with respect to all the four applicable grounds.

1^st Judicial Review

8.On 17 July 2017, the Applicant applied for leave for judicial review. He named the Board and the Director as respondents. The case number was HCAL411/2017.

9.Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 9 November 2017.

10.On 23 February 2018, the Judge gave her decision. She had considered the 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.

11.There was no appeal against the Judge’s ruling in HCAL411/2017.

2^nd Judicial Review

12.However, the Applicant on 7 March 2018 reapplied for leave for judicial review. The case number was HCAL363/2018. This time, the Applicant named the Board as respondent and the Director as interested party.

Grounds of 2^nd Judicial Review

13.The Applicant said he was given the appeal bundle only a few days before the Board hearing. He complained that he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.

Court hearing

14.The hearing took place on 15 August 2018. The Applicant was in person. A Bengali interpreter provided service in court.

15.The Applicant confirmed all the grounds of judicial review were in the documents. He also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.

16.The Applicant was asked why he repeated applying for leave for judicial review. He said there were still dangers in his country. He asked the court to reconsider his application.

Discussion

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

18.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]

19.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 17 July 2017. The case number was HCAL411/2017. Deputy High Court Judge Woodcock heard the Applicant on 9 November 2017.

20.The Judge gave her decision on 23 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, he on 7 March 2018 filed the 2^nd Judicial Review application (HCAL363/2018).

21.The Applicant was asked why he repeated applying for leave for judicial review. He said there were still dangers in his country. He asked the court to reconsider his application.

22.The Applicant said the Judge refused his previous application ‘ due to lack of presentation’.[7] That was not correct. The Applicant presented a number of complaints in his previous affirmation dated 17 July 2017. He was also present in court before the Judge on 9 November 2017 to answer the Judge’s inquiry.

23.The Applicant's current complaints were not included in his previous affirmation but they were nothing new actually. They could have been raised by the Applicant in his previous application. He failed to explain why he had not done so.

24.The Applicant must show good reason to justify a renewed application for leave for judicial review. He could not simply ask the court to consider his case again on such grounds already submitted or which could have been submitted in the 1^st Judicial Review.

25.The Applicant failed to justify his 2^nd Judicial Review application, which was merely a repetition. His unjustified repeated application must be regarded as an abuse of process. His case had been duly considered by the Judge in the 1^st Judicial Review. I should not reconsider it.

Conclusion

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

Dated the 28^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 28/6/2019
Bapari Md Shahin

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 28/6/2019

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5383/16/12/30/B685

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 71/16 (formerly RBCZ 2436/14)

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).

[7] The Applicant's Affirmation dated 7 March 2018, para 8.

Cites 3 cases

Cases cited in this judgment