Zaheer v. Director of Immigration

Case No.HCAL 526/2022[2022] HKCFI 2275

Court

High Court CFI

Date26 Jul 2022

Judge—

Case Document

100%Judiciary

HCAL 526/2022

[2022] HKCFI 2275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 526 of 2022

BETWEEN
	Zaheer	Applicant
	and
	Director of Immigration	Putative Respondent

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 oral submissions by the Applicant 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 31 May 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1602 of 2018 (the “previous 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. On 5 May 2013, he sneaked into Hong Kong illegally from China. He was arrested by police on 12 September 2013 and was referred to the Immigration Department. He lodged non-refoulement claim by way of written representation on 14 September 2013. His claim was then considered under the unified screening mechanism on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.His claim on Torture risk, BOR 3 risk and Persecution risk was rejected by the Director by a Notice of Decision dated 13 November 2015. His claim on BOR 2 risk was also rejected by the Director by a Notice of Further Decision dated 20 July 2017.

5.He appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 1 August 2018 (the “Board’s Decision”), the Board dismissed his appeal on claim on all grounds.

6.He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 8 February 2019 (“the Court’s Order”).

7.His application for new ground to be adduced for appeal and for leave to appeal against the Court’s Order was dismissed by the Court of Appeal on 19 June 2020. His renewed application for leave to appeal the Court’s Order was also dismissed by the Court of Appeal on 4 November 2020.

8.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 January 2021.

9.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 26 October 2021.

10.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 30 December 2021.

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

The subsequent claim application

12.The factual basis of his previous claim is that if refouled, he would be harmed or killed by some members of the Bangladesh Chhatra League, student Wing of Bangladesh Awami League in his locality because he was an active worker of Jamat-e-Islami Party.

13.The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies in Bangladesh was low as shown by the low intensity and frequency of past ill-treatments from them; that there was no evidence that the applicant would be subjected to a real risk of being harmed or killed; that there was no evidence that the state was involved; that state protection would be available to him.

14.He appealed the Director’s Decision to the Board. The Board, having considered the evidence, agreed with the Director. It further found that the applicant was an unreliable witness. It dismissed his appeal.

15.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.

16.In support of his subsequent claim, he said he cannot go back to his country at this moment because his life is not safe. He wants to stay until his problems have been solved.

17.The Director considered that the applicant relies upon the same or similar facts of his previous claim as his enemies are the same and all those issues he has raised in his subsequent claim had been considered in the previous claim. The documents he submitted to the Director were found dubious. The Director therefore found that the applicant relies upon the same or similar facts in support of the subsequent claim, such facts, when considered together with his previous claim, will not give him a realist chance of success in his subsequent claim. He dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

18.The applicant has filed an affirmation in support of his application. He said he is not satisfied with the Director’s Decision. He cannot go back to his country as his life will be in danger.

DISCUSSION

19.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.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 he has a family in Hong Kong. His wife is in hospital. His two children are young. No one will look after them if he is arrested. However, he admitted that the Director might not be wrong in his decision.

21.There is no valid reason from the applicant to challenge the Director’s Decision.

22.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.

23.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

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

25.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.

26.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.

27.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.

28.Upon being requested to show cause why the Court should not make the RPO against him, the applicant said he wanted some time to sort out his problems in his country.

29.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 High Court 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 the Court 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 Court 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 the Court, 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

30.The applicant’s application is dismissed.

31.RPO in terms of paragraph 29 be made against the applicant.

Dated the 26^th day of July 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 July 2022 Zaheer Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 July 2022 Director of Immigration Putative Respondent’s ref. no.: L/M (25111) in ImmD RA 7/37/C (Formerly RBCZ 9002045/17; CZ 534/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)