Aloula Magliwe v. Director of Immigration

HCAL 693/2022

[2022] HKCFI 2798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 693 of 2022

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 4 May 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 487of 2017 (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.

3.The applicant appeared before the Court on 29 August 2022.

The procedural history

4.The applicant is an illegal immigrant from Togo. On 14 December 2013, he came to Hong Kong as a visitor and was allowed to stay as such. However, he overstayed and surrendered to the Immigration Department. He lodged non-refoulement claim by way of written representation on 15 January 2014. His claim was then considered on the applicable grounds. His claim on Torture risk under the Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention was rejected by the Director’s Notice of Decision dated 13 April 2016. His claim on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance was also rejected by the Director’s Notice of Further Decision dated 17 March 2017.

5.He appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 28 April 2017 (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 24 May 2018 (“the Court’s Order”).

7.His application for extension of time to appeal against the Court’s Order was dismissed by the Court of Appeal on 3 October 2019 and his renewed application was also dismissed by the Court of Appeal on 11 August 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 7 June 2021.

9.His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision is still pending the result.

10.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 28 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 the National Intelligence Agency and the ruling party Union for the Republic (“his enemies”) as he had involved in the former Minister, Pascal Bodjona’s plan to improve the ruling of the country and Pascal was arrested and charged with fraud complicity in September 2012.

13.The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies was low as there was no evidence that the applicant would be subjected to a real risk of being harmed or killed by his enemies as there was no evidence to show that they intended to kill him; that he was only informed by his friend that his enemies would harm or kill him, but such rumor was never materialized; that the state protection would be available to him and that internal relocation was a viable option open to him and that he did not have any additional information in support of his claim on BOR 2 risk.

14.He appealed the Director’s Decision to the Board. The Board, having considered the evidence, agreed with the Director. It further found that his evidence of his friend’s information of his enemies were going to harm or kill him was implausible and he had exaggerated his level of support and involvement in encouraging others to support Pascal through his job at the Ministry of Territorial Administration. The Board dismissed the evidence as only remote and speculative risk.

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 submitted to the Director that he still feared that he would be harmed or killed by his enemies, who are connected with the police and Gendarmerie in Togo. Other dissidents were arrested and became unknown as according to the UK press. There was another case where the dissident was arrested and tortured. The Togolese government was finally found liable for the torture and was ordered to pay damages to the victim. But the Togolese government refused to pay. He submitted that there is evidence to show his relationship with Pascal and he will also be arrested and tortured if he returns to Togo where secret police and gendarmerie are ubiquitous. Also, freedom of speech and press in Togo are in jeopardy as journalists are held in custody under poor condition. Violation of human rights takes place in Togo. He cited another example where a dissident was captured in another country and detained in Togo. He considered himself to be a threat to national security of Togo and he could be easily located by the secret police and it is therefore unsafe for him to return to Togo. He submitted four articles relating to political prisoner being arrested and detained and the human rights situation in Togo.

17.The Director considered that the applicant relied upon the same or similar facts of his previous claim as his enemies are the same enemies. His evidence on the facts of his case had been considered by the Director and the Board, which held that his evidence was remote and speculative. The other examples in relation to the Togolese government detained and tortured the dissidents are only examples of other people and there is no evidence to show that the applicant was personally at risk himself.

18.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 realistic chance of success in his subsequent claim. The Director dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

19.The applicant has filed an affidavit in support of his application. But he did not raise any specific ground. However, he submitted some papers at the hearing and asked the Court to take those factors into consideration. I shall deal with them below.

DISCUSSION

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, §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 some papers in support of his application. In these papers, the applicant pointed out that he was not legally represented or assisted in his preparation of this hearing.  He referred to the articles on the political situations in his country where the government is cruel to its dissidents by arresting them or imprisoning them without justice.  He complained that the Board should not reject his evidence.

22.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

23.The rationale in the above case also applies to this proceeding as well.

24.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be “personally at risk …”

25.The Board had already made its findings that his evidence of his friend’s information of his enemies were going to harm or kill him was implausible and he had exaggerated his level of support and involvement in encouraging others to support Pascal through his job at the Ministry of Territorial Administration.  The Board is the arbiter for the finding of the facts, which is final, only subject to judicial review.  This Court has no evidence to upset the Board’s finding of the facts. There is no evidence to show that the political situations in the applicant’s country cause personal risk to him.

26.I find that there is no valid reason from the applicant to challenge the Director’s Decision.

27.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.

28.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

29.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.

30.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.

31.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.

32.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. Upon my enquiry what comments on the intended RPO, he said he had nothing to say.

33.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

34.The applicant’s application is dismissed.

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

Dated the 14^th day of September 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