Farooq Ahmed v. Director of Immigration

Case No.HCAL 852/2021[2021] HKCFI 2502

Court

High Court CFI

Date31 Aug 2021

Judge—

Case Document

100%Judiciary

HCAL 852/2021

[2021] HKCFI 2502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 852 of 2021

BETWEEN

	Farooq Ahmed	Applicant
	and
	Director of Immigration	Putative Respondent

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 is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 28 April 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 789 of 2017 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration and the decision in respect of which relief is sought is the Director’s Decision.

3.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

4.The applicant is an illegal immigrant from Pakistan. He raised a torture claim with the Immigration Department on 3 February 2008. He then withdrew his application. He was arrested for illegal remaining in Hong Kong and sentenced to one month’s imprisonment. On 21 September 2016, he lodged non-refoulement claim on the grounds of Torture risk under section 37U (1) of the Ordinance, BOR 2 risk, Right to Life 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.

5.By the Director’s Decision dated 24 January 2017, the Director rejected his claim on all the risks and he appealed to the Torture Claims Appeal Board. His appeal was dismissed by the Board’s Decision dated 17 August 2017 (the “Board’s Decision”).

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 3 August 2018 (the “Court’s Order”).

7.His appeal against the Court’s Order to the Court of Appeal was dismissed on 24 December 2018.

8.His notice of motion of appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 5 March 2019.

9.His application to the Court of Final Appeal for leave to appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 23 June 2020.

10.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 8 September 2020.

11.By the Director’s Decision, the Director refused his application.

The subsequent claim application

12.The factual basis of his original claim is that if he is refouled to Pakistan, he would be harmed or killed by Choudhry and his people because he injured his son in a cricket match in 2002.

13.The Director found that his claim was not substantiated as the level of risk of him being harmed or killed by the Choudhry and his people if he returned to Pakistan was assessed to be low; that state protection would be available to him and that internal relocation was an option open to him.

14.The Board agreed with the Director and rejected his appeal. It further found that there was no real risk of proscribed harm from Choudhry and his people if he returned to Pakistan.

15.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.

16.The applicant submitted that he could not return to Pakistan because he was still targeted by Choudhry. His cousin’s brother was killed by Choudhry.

17.The Director rejected his grounds. The information was obtained from his cousin in Pakistan, which is hearsay evidence not subject to test. The threats and dangers caused by Choudhry and his people had been considered in the original claim. There is no evidence to show that his cousin’s brother’s death is related to his case. The Director did not accept that the information amounted to change of circumstances, which, coupled with his original claim, would have reasonable prospect of success in his subsequent claim.

The application for leave to file judicial review application

18.The applicant has filed an affirmation in support of his application, stating that he cannot go back to his country at this moment because his life is not safe. He wants to stay until his problem is solved. He appeared before me. When asked what he had to say about the Director’s Decision, he said that he had a heart problem and he required medical treatment.

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

20.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].”

21.The Director has assessed his evidence and came to his conclusion as he did in this case. The Director is clearly entitled to come to such conclusion. The applicant is clearly relying principally on the same facts of his original claim for his subsequent claim.

22.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.

23.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

24.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.”

25.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 courts. His reasons in support of his subsequent claim are clearly insufficient to overcome the reasons given by the Director and the Board in rejecting his claim. He should be well aware of those reasons himself as he was legally represented for his subsequent claim.

26.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 in 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]}

27.RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Director of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

28.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.

29.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 RPO by the court interpreter outside this court before hearing.

30.Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that he had nothing to say.

31.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 his 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

32.The applicant’s application is dismissed.

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

Dated the 31^st day of August 2021

	(M.O. WONG)(Ms)
	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 31 August 2021 Farooq Ahmed 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 31 August 2021 Director of Immigration Putative Respondent’s ref. no.: L/M (21851) in ImmD RA 7/37/C (formerly RBCZ/13232/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)