Dhali Jony v. Director of Immigration

HCAL 1224/2021

[2021] HKCFI 2919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1224 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 27 July 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 342 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.

The procedural history

3.The applicant is an illegal immigrant from Bangladesh. He raised non-refoulement claim with the Immigration Department by written representation on 26 June 2013 on the grounds of Torture risk under the Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance. 

His claim was rejected by the Director by a Notice of Decision dated 10 November 2015 and a Notice of Further Decision dated 12 June 2017.

4.He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 7 February 2018 (the “Board’s Decision”), the Board rejected his appeal.

5.He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 21 February 2019 (the “Court’s Order”).

6.His appeal against the Court’s Order was dismissed by the Court of Appeal on 10 July 2019.

7.His 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 28 August 2019.

8.His 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 16 December 2020.

9.He applied to the Director for a subsequent claim for non-refoulement protection by letter dated 7 June 2021.

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

The subsequent claim application

11.The factual basis of his claim is that if refouled, he will be harmed or killed by his neighbour’s family to retaliate on his act of injuring one of their family members in 2012.

12.The Director found that his claim was not substantiated. He found that the level of risk of him being harmed or killed by his neighbour’s family if he returned to Bangladesh was assessed to be low; that there was no evidence to show that the state was involved; that state protection was available to him and that internal relocation was an option open to him.

13.The Board agreed with the Director. He did not attend the hearing before the Board despite due notice had been given to him. The Board proceeded to consider his appeal without his oral evidence. It found that his allegations of the facts were hearsay evidence and speculations only. It did not attach weight to the hearsay evidence. The Board dismissed his appeal.

14.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.

15.He relied upon the same facts that his neighbour’s family would harm or kill him, which had been considered in his original claim. The Director found his allegations that his neighbour’s family would mobilize the Awami League people against his family and that his uncle was chopped by the terrorist group were only his speculation without any evidence to support.

16.The Director does not accept that those are significant change of circumstances. Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

17.The applicant has filed an affirmation in support of his application. He repeated his factual submissions to the Director, without setting out in what respect he considered that the Director was wrong in coming to his conclusion.

18.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).

19.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that his enemies are the same enemies and they will attack him for the same reason.

20.The Director is entitled to reach his conclusion after considering his evidence as he did in this case.

21.It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application. According to the Director, the incidents after the determination of the original claim are the continuation of the facts in the original claim.  I agree.

22.The applicant has no valid reason to challenge the Director’s Decision.

23.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.

24.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

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

26.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.

27.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.

28.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.

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

30.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 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

31.The applicant’s application is dismissed.

32.RPO in terms of paragraph 30 be made against the applicant.

Dated the 15^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