Mahfuzul Haque v. Director of Immigration

HCAL 669/2022

[2022] HKCFI 3093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 669 of 2020

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 27 May 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1971 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.

3.The applicant appeared before the Court on 14 September 2022.

The procedural history

4.The applicant is an illegal immigrant from Bangladesh. On 26 June 1994, he came to Hong Kong on a forged passport. He overstayed and was arrested by police. He was repatriated to Bangladesh on 29 September 1997. On 16 May 2004, he came to Hong Kong on a forged passport. He was later charged and convicted, sentenced to imprisonment and was repatriated on 15 January 2007. On 5 September 2014, he was arrested for possession of a forged passport. He was denied access to Hong Kong and was repatriated to China. On 2 November 2016, he was arrested for remaining in Hong Kong without permission. He lodged non-refoulement claim by way of written representation on 25 November 2016. His claim was then considered 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.

5.His claim on Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk was rejected by the Director by a Notice of Decision dated 17 February 2017.

6.He appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 22 June 2018 (the “Board’s Decision”), the Board dismissed his appeal on claim on all applicable grounds.

7.He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 16 July 2020 (“the Court’s Order”).

8.His appeal against the Court’s Order was dismissed by the Court of Appeal on 21 January 2021.

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 8 March 2021.

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 9 November 2021.

11.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 26 January 2022.

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

The subsequent claim application

13.The factual basis of his previous claim can be extracted from the Court’s Form CALL-1 dated 16 July 2020.

“3. He set out in his statement the incidents that led him to leave his country for Hong Kong. All incidents happened between 2010 and June 2014 as set out below.

a. In 2010, he had a business partnership selling construction materials with M. He invested 500,000 Taka.

b. In early 2014, because of the frequents strikes, which affected the business, he asked M for release from the partnership, returning 500,000 Taka to him. M refused. He intended to forfeit his money. M was related to AL, the ruling party. However, the partnership business ceased in January 2014.

c. In January 2014, there was a political election. He assisted BNP. He did not commit any crimes during the campaign. However, his other members stopped cars and burned them. AL won the election and started to arrest BNP people.

d. He was afraid that he might be involved. He fled to stay in various places: Mahikganj, Mohammadpur and Bhola. However, he was told by his brother that police were still looking for him. He was afraid that M might give information to police to arrest him in order to forfeit his money for the investment.

e.  In June 2014, he came to Hong Kong.”

14.The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies was low as shown by the low intensity and frequency of past ill-treatments from them; that M’s behaviour was on monetary dispute rather than killing the applicant; that it was his speculation that police would arrest and torture him; that even if he was arrested, he would have the protection under the process of the law; state protection would be available to him and that internal relocation was a viable option open to him.

15.He appealed the Director’s Decision to the Board. The Board, having considered the evidence, agreed with the Director. It further found that there were inconsistencies in his evidence and therefore his evidence was not reliable.

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 submitted that the AL leader was looking for him and he also wanted the family’s land for their land project. The family refused to accede to their request.  They had gone to his family and told them to move out so that the land can be obtained for their land project. They also beat his brother and vandalized the family. His family reported the matter to police, who did not take action as the AL is the ruling party. He had also produced video call to show that his neighbors, whose land was also affected, and his enemies had a fight with bamboo, knife and local weapons. His brother was arrested. A charge has been laid against those people and his name was on the charge although he was not in Bangladesh at the material time. He has also submitted 2 documents, which show the land grabbing and disputes in Bangladesh.

18.The immigration officer found that there was no evidence to show that his family members were subjected to torture or serious bodily harm that satisfied the requirements of BOR 3 risk. Also, even if his family members were injured, it does not automatically infer that he would suffer the same fate from his enemies if he is returned to Bangladesh. His fear of being harmed or killed by his enemies is solely his own speculation without evidential basis. His fear is therefore considered far-fetched and unfounded.

19.The immigration officer noted that the land dispute above was not mentioned in his previous claim and are taken to be the new risk of harm in his subsequent claim. See paragraph 14 of the Director’s Decision.

20.However, the immigration officer took the view:

“15. It is considered that the nature of the said land dispute and your money dispute with Bacchu [referred as “M” in the previous claim] are similar as both disputes are private in nature. In any event, the money dispute had already been thoroughly considered in your previous claim (see paragraph 11 above) which was assessed as not substantiated. …In addition, you claimed that the police seemed not interested in filing any case against the AL leaders and the developers because the police was also involved in this “game”. However, you did not adduce any credible evidence to support your assertion…. the evidence adduced by you showed that the police had indicated a willingness to do their duties, because upon your brother and your neighbours’ report to the Ashulia police station, the police stated that they would look after the matter….”

21.The Director came to the conclusion:

“18. In light of the above, it is not accepted that there has been a significant change of circumstances since your previous claim was finally determined. Even if assuming that there has been any change, when taken together with the materials previously submitted in support of your previous claim, would not give the subsequent claim a realistic prospect of success. The Request is therefore refused. You may not make a subsequent claim for non-refoulement protection under the USM.”

The application for leave to apply for judicial review

22.The applicant has filed an affirmation in support of his application, in which he relies on the grounds below:

a.  the Director admits that his subsequent claim is based on different claim from his previous as stated in paragraph 14 of the Director’s Decision;

b.  the Director failed to show why he would not face the risks upon his refoulement as he was prosecuted even he was not in Bangladesh and the Director should have made investigation;

c.  although his enemies are the same enemies, the facts are different and the Director did not focus on his claim;

d.  procedural impropriety: failure to apply para 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient inquiry into the relevant country of origin conditions on his case; failure to conduct any screening interview for his new case and there was no opportunity or proper fairness as there was no interview; failure to consider that he had genuine risk and he could not relocate because his enemies can trace him wherever he hides in his country;

e.  error or misdirection in law: failure to realize the difference between his previous claim and his new claim and he failed to consider his supporting documents and there is no sufficient basis to conclude that he and his family members would not be at risk of his enemies.

DISCUSSION

23.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).

24.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 understood the Director’s reasons and he was not saying that the Director was wrong.

25.It is quite clear that the immigration officer had considered the applicant’s reasons in support of his subsequent claim and the documents he produced before coming to his conclusion. The applicant argues that since the Director admits that the facts relating to the AL leaders grabbing his family’s land are new facts, the Director should consider that he has realistic prospect of success in his subsequent claim and should not find that he would not be subjected to genuine risk of harm upon his refoulement. The Director has, in the Director’s Decision, given his reasons for his conclusion. His enemies are the same in his previous claim. Although the facts for his subsequent are different, the nature of the two claims are similar; that is to say, it is personal dispute, one over money, the other over the family’s land. There is no evidence in support of any of the applicable claims, viz. Torture risk, BOR 2 risk BOR 3 risk or Persecution risk.

26.The grounds in paragraph 22 above do not assist the applicant. Putting the applicant’s case to its highest, the applicant fails to show that he has reasons in support of his non-refoulement claim. Grounds 22 a, b, and c fail. Since the applicant had made a previous claim, for which screening process had been conducted, it is not necessary to provide another screening process for the subsequent claim under the Ordinance. As the nature of the subsequent claim is similar or the same as the previous claim, the Director has considered the previous claim, there is nothing amiss for not having another screening process for the subsequent claim. The Director obviously has noticed of the difference between the applicant’s previous claim and his subsequent claim as he has expressly said so in paragraph 14 of the Director’s Decision. The Director considers that the different facts do not alter the same nature of his previous claim and his subsequent claim. The other grounds are his assertions or opinions without evidence in support. Grounds 22 d and e fail too. The applicant submits that he cannot relocate for his safety. However, it is clear from his own evidence that his family members have been evicted to live somewhere else and they are safe for the time being.

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 Court is aware that the applicant is relying upon different facts in support of his subsequent claim as admitted by the Director in paragraph 14 of the Director’s Decision. The question is whether such new facts will exempt the applicant from RPO. The Court has to consider whether the applicant is attempting to abuse the process of the court. The meaning of “abuse” is defined by the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1:

“6. The categories of abuse of process are never closed. In the context of the civil justice system as it evolves from time to time, there is an infinite variety of abuse that may arise….

48.    There are many variants of such abuse and of what motivates it.  It may represent a calculated attempt by a defendant to delay an inevitable judgment or its execution. …”

30.The Director’s findings show that the applicant is attempting to re-litigate facts of similar nature in support of his previous claim for a subsequent claim for the purpose of remaining in Hong Kong only, which will amount to an abuse of the process. This is clear in view of the fact that in his previous claim, the Director and the Board had found that state protection was available and relocation was an option open to him. 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.

31.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.

32.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.

33.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.

34.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

35.The applicant’s application is dismissed.

36.RPO in terms of paragraph 34 be made against the applicant.

Dated the 7^th day of October 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