Uddin Borhan v. Director of Immigration

HCAL 467/2021

[2021] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 467 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the applicant.

Observations for the Applicant:

THE APPLICATION

1.This the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 18 February 2021 (the “Director’s Decision”) refusing his application for subsequent claim of HCAL 984 of 2017 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

2.The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

The procedural history

3.The applicant is an illegal immigrant from Bangladesh.  He had raised non-refoulement claim with the Immigration Department on 2 April 2015 on the grounds of Torture risk under the Ordinance, BOR 2 risk, Right of Life risk under Article 2 of the Bills of Right Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. 

4.His claim was rejected by the Director by a Notice of Decision dated 28 July 2017 in the original claim.

5.He appealed to the Torture Claim Board (“the Board”).  By its Decision dated 17 November 2017, the Board rejected his appeal.

6.He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 7 December 2018.

7.He applied for leave to appeal against the Court’s Order to the Court of Appeal out of time and his application was refused on 23 September 2019 because his application was late for more than 6½ months and there was no merit in his intended appeal as found by the Court.

8.About 11 months later, he applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 19 August 2020.

9.By letter dated 18 February 2021, the Director refused his application.

The subsequent claim application

10.The factual basis of his claim is that if he is refouled to Bangladesh, he would be harmed or killed by people from his opponent party, Awami League Party (the “AL”).  The Director found that his risk of being harmed or killed was low; that state protection would be available to him and internal relocation was an option open to him.  The Board found that all the core assertions to his claim had been fabricated and were wholly unreliable.  The Board also affirmed the Director’s Decision in the original claim.

11.Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

12.In the Director’s Decision, the immigration officer had considered the findings of facts in the Director’s Decision and the Board’s Decision in the original claim [10]; the additional information including the documents submitted in support of the subsequent claim [11] and the evidence of the interview with the applicant, who was legally represented.  According to the Director’s Decision, the information below is from his mother in Bangladesh and his lawyer there.

13.The applicant relies upon the following new circumstances in support of his application [13]:

a.  his enemy in Bangladesh had bribed the police there to issue a new arrest warrant of false case against him and his father;

b.  if he returned to Bangladesh, he would be arrested and tortured by the police;

c.  his father had left Bangladesh for India and his brother had also gone to Azerbaijan for his study; 

d.  a letter to certify that he was affiliated with the Bangladesh Nationalist Party and that he had been given the responsibility of Campaign Secretary of Bangladesh Nationalist Chatradal in the Mirpur Model Police Station Branch;

e.  a letter from his lawyer in Bangladesh, which said that a case of sedition had been filed against him and the police were looking for him.

14.The Director had considered the above and come to the conclusion that the new arrest warrant issue was part of his original claim, which had been determined by him and the Board; that there was no evidence to show that the police was bribed to harm him or to torture him; that there was no evidence that he would not have a fair trial in Bangladesh and that his fear of being tortured before he was taken to court was farfetched as he had a lawyer to represent him in Bangladesh.  The issues of police corruption and the power of the AL was such that he could not relocate internally had been raised and rejected in his original claim.  The Director therefore did not accept that there was a significant change of country conditions after his original claim had been finalized. [14]

The application for leave to file judicial review application

15.The applicant filed Form 86 to apply for leave to apply for judicial review of the Director’s Decision.  In support of his application, in his affirmation, he said that the Director’s Decision was unreasonable in that he failed to consider all the matters raised in his claim and/or give adequate reasons for his Decision.

16.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

17.The applicant was asked if he had any comments on the Director’s Decision.  He said that he was not satisfied that the Director made his decision after he had submitted the new documents to him.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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 [the Director].”

19.The applicant’s grounds in support of his application do not assist his application.  The Director had obviously given the reasons for his decisions.  The factual issues in support of his original claim were that he feared that he would be harmed or killed by the Awami League members or supporters if he returned to Bangladesh.  Those issues raised for his subsequent claim are found to be part of the main factual issues, which were found to be unsubstantiated by the Director and even fabricated by the Board.  Therefore, the new issues have no factual basis to support them.  The Director is clearly entitled to reach his Decision as he did.

20.The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.Since there is no reasonable prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The Restricted Proceedings Order

22.In accordance with Practice Direction 11.3, RPO should be made under the following circumstances:

“8. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”

23.As shown by the procedural history above, it is plain that the applicant refused to accept the unfavourable decisions made by the Director, the Board and the Court.

24.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his claim for a subsequent claim, categorically fitting the description of:

“the vexatious litigants typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.”[1]

The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a restricted proceedings order (“RPO”) and the extended order against him.[2]

25.In Ng Yat Chi’s case, Paras. 19 and 20, the Chief Justice sounded a note of caution regarding extension of RPO to cover judicial review.  In The Secretarty for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2002] 1 HKLRD 679, it was held that RPO can be, in principle, extended to cover applications for leave under Order 53. [32]  This view was adopted by the Court in Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021.  I agree.  The filtering process for judicial review cases is to prevent authorities from being unduly vexed with unarguable challenges[3] , which may be one form of abuse, whereas the RPO is to prevent abuse of the Court’s process[4] , another form of abuse.  The Court of Final Appeal has said clearly:

“101. … … Abuse of process may come in a wide variety of forms and be of different degrees and, subject to the principles discussed above, the court’s inherent jurisdiction enables it flexibly to develop such proportionate responses as may be appropriate.”[5]

26.In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process.  The application should be viewed together with the procedural history of the case.  The Court should take preventive measures against any abuse of its process.

27.For this reason, the Court has called upon the applicant to appear before it to show cause why a RPO should not be made against him.  The applicant has been explained the proposed restricted proceeding order by the court interpreter outside this court before hearing.

28.Upon being requested to show cause why the Court should not make the RPO against him, the applicant has given no reason except that he indicated that he wished to have a lawyer to represent him.

29.Having considered the applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings on the same facts for the sole purpose of remaining in Hong Kong only.  I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same.

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the Court on paper and without any oral hearing unless the designated Judge should otherwise direct.

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)  Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the Court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)  No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)  This order shall cease to have effect at the end of 5 years from the date of this order.

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

30.The applicant’s application is dismissed.

31.A RPO in terms of paragraph 29 be made against the applicant.

Dated the 23^rd day of July 2021

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

Form CALL-1

[1]  Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (1997-1998) 1 HKCFAR 72, §48

[2]  Ibid §§7 & 8

[3]  Peter Po Fun Chan v Winnie C.W. Cheung, Chief Executive & Registrar of Hong Kong Institute of Certified Public Accountants (the “Society” or “Institute”) and Mark Fong, Chairman of the Registration and Practising Committee of the Society (2007) 10 HKCFAR 676

[4]  Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (1997-1998) 1 HKCFAR 72, §§63 & 66

[5]  Ibid