Momotaz v. Director of Immigration

HCAL 1196/2021

[2021] HKCFI 2884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1196 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 30 July 2021 (“the Director’s Decision”) refusing her subsequent claim of HCAL 1097 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 her since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert her 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. She raised non-refoulement claim with the Immigration Department by written representations on 27 May 2015 and 18 September 2015 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.On 27 February 2017, she withdrew her non-refoulement claim and the Director confirmed by letter dated 9 March 2017 that no further action would be taken on her claim.

5.On 18 April 2017, she requested for re-opening of her non-refoulement claim.  The Director entertained her request.

6.Her claim was rejected by the Director by a Notice of Decision dated 14 August 2017.

7.She appealed to the Torture Claims Appeal Board (“the Board”).  But by letter dated 18 May 2018, she applied to the Board to withdraw her appeal.

8.On 24 May 2018, the Board confirmed the Director’s Decision and directed that her appeal was withdrawn.

9.By letter dated 7 June 2018, she requested the Board to re-open her appeal. The Board, by letter dated 13 June 2018, refused her request for the reason that it was already functus officio (“the Board’s Decision”).

10.She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 31 January 2019 (“the Court’s Order”).

11.She appealed against the Court’s Order to the Court of Appeal and her appeal was dismissed by the Court of Appeal on 13 June 2019.

12.Her Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 5 August 2019.

13.Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 9 March 2021.

14.She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism on 19 March 2021.

15.By the Director’s Decision, the Director refused her application.

The subsequent claim application

16.The factual basis of her claim is that if she returned to Bangladesh, she would be harmed or even killed by her husband, Saiful Islam, the General Secretary of Chatra League (the student wing of the Awami League) and his party members because she, being the General Secretary of Chatra Dal (also known as Jatiyatabadi Chatra Dal) [the student wing of the Bangladesh Nationalist Party] refused to join his party. Besides, she had taken 150,000 Taka from Saiful’s house before she left him.

17.The Director found that her claim was not substantiated.  He found that there was no evidence for believing that she would be harmed or killed if she returned to Bangladesh as she alleged; that there was no evidence to show that the state was involved and reasonable state protection was available to her and that internal relocation was an option open to her.

18.As she withdrew her appeal, the Board simply affirmed the Director’s Decision and confirmed that her appeal had been withdrawn. She then applied for re-opening her appeal.  The Board refused her application for the reason that it was already functus officio.

19.Under section 37 ZO of the Ordinance, she 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.

20.According to the Director’s Decision, she relied upon the same facts in her original claim in support of her subsequent claim.  She had no evidence to show that she had any important role to play in the Bangladesh Nationalist Party or its associated groups.  That her family was still the victims suffering ill-treatment from the Awami League people is only hearsay evidence from her friend in Bangladesh, which cannot be tested.  Her family did not complain to her directly.  The Director disagrees that the new circumstances as alleged by her constitute significant change of circumstances, which, considered together with the facts in her original claim, would give realistic prospect of success to her subsequent claim.

The application for leave to apply for judicial review

21.The applicant has filed an affirmation in support of her application.  She enclosed the Director’s Decision with her affirmation without specifying any reasons in support of her application.

22.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.  The Court will not usurp his fact finding power.  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).

23.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that she had nothing to say.

24.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.

25.It is quite clear that the applicant is re-litigating her original claim, which had already been determined by the Director, in her subsequent claim application.  The Board is clearly right to say that once her withdrawal had been confirmed, it had no further power to deal with her appeal, not even to re-open it.  See Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, §§41 & 42.

26.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.

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

The RPO

28.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her original 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 her.  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.

29.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.

30.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 her intention is clearly an abuse of the process.  The application should be viewed together with the procedural history of the case.

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

32.Upon being requested to show cause why the Court should not make the RPO against her, the applicant said that she had nothing to say.

33.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 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)  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

34.The applicant’s application is dismissed.

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

Dated the 8^th day of October 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