Moung Khing Rakhing v. Director of Immigration

HCAL 1687/2021

[2022] HKCFI 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1687 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 14 September 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 408 of 2017 (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.This is an adjourned hearing from 29 December 2021 where he applied for an adjournment of the hearing because he had applied for legal aid. Today, he also applied for further adjournment because his application for legal aid had not been approved. I had assessed the merits of his case by referring to the Director’s Decision and found that there is no merit in his application. I therefore refused to allow further adjournment for him and proceeded to hear the case.

The procedural history

4.The applicant is an illegal immigrant from Bangladesh. On 26 May 2008, he was arrested. He raised torture claim with the Immigration Department by written signification dated 8 June 2008, which was taken as non-refoulement claim on the grounds of Torture risk under the Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention and subsequently BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance. 

5.His claim was rejected by the Director by a Notice of Decision dated 28 October 2015 and a Notice of Further Decision dated 23 March 2017.

6.He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 19 May 2017 (the “Board’s Decision”), the Board dismissed his appeal.

7.He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 23 March 2018 (the “Court’s Order”).

8.His application for extension of time to appeal to the Court of Appeal was dismissed by the court and his application to the Court of Appeal for extension of time to appeal was also dismissed by the Court of Appeal on 25 July 2018.

9.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 14 September 2018.

10.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 7 March 2019.

11.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 12 April 2021.

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

The subsequent claim application

13.The factual basis of his claim is that if refouled, he will be harmed or killed by members of fundamentalist Muslim group, and in particular the Islami Chhatra Shibir (“CS”) which was the student wing of the Jamaat-e-Islami Bangladesh as he belonged to a tribe called Rakhing practicing Buddhism and he was the president of a local group called the Rakhing Student Council (“RSC”) acting against CS.

14.The Director found that his claim was not substantiated. He found that the risk of being harmed or killed by members of CS upon his return to Bangladesh was low; that he did not seek protection immediately upon his arrival in Hong Kong; that state protection would be available to him and that internal relocation was an option open to him.

15.The Board affirmed the Director’s Decision. It further found that the applicant was unable to show that he had real risk of being harmed or killed as he claimed if he returned to Bangladesh. It did not believe that CS would be still interested in him after a period of 11 years he had left Bangladesh.

16.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.

17.In support of his subsequent claim, he had submitted a statement stating that his brother LKR was attacked by the Bangladesh Hefajat-e-Islam (“BHEI”) activists recently. His another brother who returned from Malaysia in January 2021 was also attacked by BHEI activists. He further said that there were false charged filed against him.

18.The Director does not accept that the additional materials are significant change of circumstances as his threats arise from his original claim, which had been considered. Those grounds had been considered by the Director and the Board in his original claim. The additional information is hearsay material, which cannot be tested. Coupled with the original claim, the additional information will not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

19.The applicant has filed an affirmation in support of his application. He attached the Director’s Decision without specifying any grounds in support of his application.

20.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).

21.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted a small bundle of documents which he asked me to consider. I had considered the documents. There is a second affirmation and also an application for amendment of Form 86, by adding facts and grounds in support of his application. There other documents are the letters to the Director and the Director’s Decision and the Board’s Decision for his original claim, with exhibits. Those documents relating to the original claim had been considered by the Director and the Board and will not be considered again. I shall summarize the main points in the second affirmation and the amended Form 86:

a.     there had been change of circumstances in that his brothers were attacked by his enemies;

b.     there was a false charge against him and there will not be a fair trial for him in Bangladesh;

c.     there was a failure by the Director to consider the expert’s report and country of origin information properly;

d.     the threshold for the BOR 3 risk was set too high;

e.     failure of providing sufficient reasons for the Decision; and

f.     failure of considering whether a fair trial would be available in Bangladesh.

22.Grounds 21 a. and b. are the additional materials he had submitted to the Director for his subsequent claim. The Director had dealt with them. The other grounds relate to his original claim, which had been considered by the Director, the Board and the courts.

23.The Director found that the applicant is relying upon the same story for his original claim for his subsequent claim. See paragraph 18 above.

24.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.

25.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

26.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.

27.RPO is appropriate for the present case. See The Secretarty for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor 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.

29.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.

30.Upon being requested to show cause why the Court should not make the RPO against him, the applicant said 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 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, and any appeal, including this Order, without leave of the Court of First Instance;

(2)     All applications for leave under paragraph (1) shall be made to Deputy Judge K. W. Lung or in his absence, 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 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)     No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge.

(11)     This order shall cease to have effect at the end of 5 years from the date of this order.

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

DISPOSITION

32.The applicant’s application is dismissed.

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

Dated the 28^th day of March 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