Hussain Zubair v. Director of Immigration

HCAL 1236/2021

[2021] HKCFI 2815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1236 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 is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 22 July 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 40 of 2018 (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.

3.The applicant informed the Court that he had applied for legal aid at the Legal Aid Department on 9 September 2021.  Upon enquiry why he made his application for legal aid so late as his Form 86 is dated 30 July 2021.  He said that he asked his friend, who told him about legal aid.  I was not satisfied with his explanation as he is clearly aware of free legal assistance.  He had enjoyed such service for his original claim.  I decided to lift the statutory stay under section 15 of the Legal Aid Ordinance, Cap. 91 for the reason that he was taking advantage of the statutory stay to delay the matter.  Also, I have assessed his application and found that his application did not have merits.  I ordered that statutory stay be lifted and the matter should proceed.  See White Book Vol 2 of 2021 M1/15/1,Leader Crown Ltd v Herbert Tsai & Partners (unrep. HCA 3038/2003, [2005] HKEC 869 by J Chu :

“… … In any event, there is no apparent justification for the very late application for legal aid. It is not an unjustified view to regard the application as an attempt to gain an advantage through the statutory stay such that if, contrary to my view, section 15(4) does apply, it will be appropriate to exercise my discretion to lift the statutory stay.”

The procedural history

4.The applicant is an illegal immigrant from Pakistan.  He raised non-refoulement claim with the Immigration Department on 26 August 2014 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance.

5.His claim was rejected by the Director by Notice of Decision dated 27 July 2016 and Notice of Further Decision dated 14 July 2017.

6.He appealed to the Torture Claim Appeal Board (the “Board”).  The Board, by it Decision dated 15 December 2017, dismissed his appeal.

7.He applied to the Director for subsequent claim by letter dated 7 June 2021 and was rejected by the Director’s Decision.

8.The above procedural history is derived from the Director’s Decision.  However, it is not a complete picture.  From the file of the original claim, he had applied to the High Court for leave to apply for judicial review of the Board’s Decision.  His application was dismissed by the Court on 30 April 2019 (the “Court’s decision”).  He intended to appeal against the Court’ decision, but he was late.  He applied for extension of time to appeal by way of summons.  His application was dismissed by the Court on 31 July 2019.

9.The applicant applied to the Court of Appeal for leave to appeal against the Court’s decision out of time.  His application was dismissed by the Court of Appeal on 22 January 2020.

10.The applicant, by way of a notice of motion, applied to the Court of Appeal for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal.  His application was dismissed by the Court of Appeal on 3 June 2020.

11.The applicant then made this subsequent as described in paragraph 7 above.

12.It is important for the Director’s Decision to set out fully the procedural history of the applicant’s applications because the Court has to rely upon the information to consider whether the applicant had attempted to take out legal proceedings at the High Court on the same facts without legal basis in order to determine whether restrictive proceedings order should be made against him.  Although the Court can always refer to the file of the original claim, it will be time consuming to do so.  Usually, the Court will consider the information set out in the Director’s Decision for the subsequent claim.  The Court usually finds full procedural history from the Director’s Decision for other cases.  I recommend this practice be applied to all cases for subsequent claims.

13.I shall direct that a copy of this Form CALL-1 be sent to the Director for reference.

The subsequent claim application

14.The factual basis of his original claim is that if he is refouled, he will be harmed or killed by the people of the Pakistan Muslim League (N) (“PMLN”).

15.The Director found that the risk of him being harmed or killed if he returned to Pakistan was assessed to be low.  It was not accepted that if he returned to Pakistan, he would be subjected to being harmed or killed by his enemies as they clearly did not target him.  Reasonable state protection would be available to him.  His alleged risks are localized, which could be alleviated by internal relocation.  There was no evidence to support his claim on BOR 2 risk.

16.The Board agreed with the Director and affirmed the Director’s Decision.

17.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 or withdrawn and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realist prospect of success.

18.The applicant relies upon the information from his friend in Pakistan that the people from the Barelvi Sunnis group and the Shia group in his village had evicted his family and other village people to other places.

19.The immigration officer has considered his circumstances and disagrees that those are the changed circumstances since his original claim had been determined.  The information is only the update of his original claim.  His enemies are the same enemies in his original claim.  The information does not give realistic prospect of success to his subsequent claim when considered together with his original claim.  This means he is re-litigating his original claim.

The application for leave to apply for judicial review of the Director’s Decision

20.The applicant has filed an affirmation in support of his application.  He enclosed the Director’s Decision with his affirmation without setting out specific grounds in support of his application.

21.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

22.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that the Director was correct to say that his subsequent claim is based upon the same facts of his original claim.

23.The Director is entitled to reach his conclusion after considering his evidence as he did in this case.  The applicant has raised no valid challenge to the Director’s Decision or finding of the facts.

24.It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application. 

25.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.

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

The RPO

27.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his claim for a subsequent claim, which will amount to an abuse of the process.  The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him.  See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

28.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.

29.In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and 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.

30.For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him.  The applicant has been explained the proposed restricted proceedings order before this hearing.

31.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.

32.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

33.The applicant’s application is dismissed.

34.RPO in terms of paragraph 32 be made against the applicant.

Dated the 30^th day of September 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