Islam Hossain v. Director of Immigration

HCAL 1708/2021

[2022] HKCFI 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1708 of 2021

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 24 March 2021 refused;

2.  The application for leave to apply for Judicial Review dismissed; and

3.  A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 24 March 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 2 July 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by a villager from neighboring village for refusing to pay extortion money and/or by the local supporters of the political party Awami League (“AL”) for refusing to join their party and for supporting their rival Bangladesh Nationalist Party (“BNP”).

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 13 May 2016 and a Notice of Further Decision dated 30 June 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his perceived enemies upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them other than some verbal threats arising from either money extortions or political party’s campaign driving for new members and supporters with no real intention to cause any serious harm to the Applicant, that in either case there was no official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 8 September 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Woodcock on 18 July 2018 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 693/2017 [2018] HKCFI 1582).

7.The Applicant’s subsequent appeal against the Deputy Judge’s decision was dismissed by the Court of Appeal on 20 December 2018 (CACV 361/2018 [2018] HKCA 997).

8.The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 29 March 2019 (CACV 361/2018 [2019] HKCA 362), and then by the Appeal Committee of the Court of Final Appeal on 21 April 2020 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Less than one month later on 18 May 2020 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that the risk of harm from those AL supporters still persists as they are still looking for him and have harassed and threatened his wife and mother in Bangladesh that he still fears of being harmed or killed if refouled to his home country.  

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, on 27 May 2020 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from the Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 24 March 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

13.On 16 December 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision in which he stated that the Director reached the decision wrongly in assessing his request for making a subsequent claim but without providing any further details or particulars or elaboration how that was so, nor did he attend the re-scheduled hearing of his application without any explanation after having failed to attend the first one due to medical reason.

14.By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the three-month period for him to file his Form 86 fell on 24 June 2021, the Applicant was therefore almost 6 months late with his present application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of almost 6 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and as he also failed to attend the hearing of his application, while the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to find any possible reason for his serious delay.

17.As for the merits, if any, of his intended application, as also noted above that the Applicant has failed to put forth any proper or reasonably arguable ground for his intended challenge or to attend the hearing of his application without explanation, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, of which I also agree with the Director that it was based essentially on the previous claim of the Applicant and without any evidence of any significant change of circumstances since his previous claim was finally determined by the order of the Court of Final Appeal only less than one month before his request to make a subsequent claim. In the premises, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Restricted Proceedings Order

18.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 21 April 2020, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

19.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1)       The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a)   no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)   any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2)       The Court of First Instance may not make an order under subsection (1) unless –

(a)   it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)   it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3)       An order made under subsection (1) –

(a)   may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)   may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

20.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

21.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

22.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, he will likely continue to do so and thereby wasting further precious time and resources of the Judiciary.

23.Accordingly, I make the following order:

(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 Court of First Instance unless with leave obtained under paragraph (2);

(2)    All applications for leave under paragraph (1) shall be made to this Court or 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 his 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 this Court or 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 this Court or 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 this Court or 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 this Court or 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; and

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

Disposition 

24.The Applicant’s application for leave to apply for judicial review is dismissed.

25.A RPO in terms of paragraph 23 be made against the Applicant.  

Dated the 24^th day of February 2022.

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