Vijay v. Director of Immigration

HCAL 823/2022

[2022] HKCFI 3095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 823 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 12 July 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1872 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 21 September 2022.

The procedural history

4.The applicant is an Indian national. He came to Hong Kong on 1 February 2012 and was denied entry by the Immigration Department. He lodged a torture claim on the same day, which was rejected by the Director on 26 April 2012. He filed a petition against the Director’s decision on 30 April 2012. His petition was dismissed on 28 May 2012. He lodged his non-refoulement claim by way of a written representation dated 3 March 2014 on BOR 2 risk, BOR 3 risk and Persecution risk and was rejected by the Director’s Decision dated 10 March 2017 (“the Director’s Decision”).

5.He appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 16 July 2018 (the “Board’s Decision”), the Board dismissed his appeal.

6.He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 24 June 2020 (“the Court’s Order”).

7.His appeal against the Court’s Order was dismissed by the Court of Appeal on 3 December 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 16 July 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 April 2022.

10.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 18 May 2022.

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 even killed by Mr. Ishwar Chand Sharma, the landlord, with whom his father had a tenancy dispute. The tenancy dispute was that the landlord wanted to re-possess the shop. His father asked for the refund of the rental deposit, but the landlord refused to return the rental deposit to him, saying that the rental deposit was non-refundable. His father refused to vacate the shop until he had his rental deposit back from the landlord. The landlord went to his father’s shop from time to time, telling his father that he should vacate the shop. At one time, the landlord told his father that he had better leave if he wanted to see his son alive. His father was concerned about his safety as the applicant is the only son of the family. His father sent the applicant to Hong Kong.

13.The Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by the landlord upon his return to India [11]; that state protection and alternate avenues to seek justice were available to him [14 & 16] and internal relocation was an option open to him [20]. He appealed to the Board.

14.The Board rejected his appeal and confirmed the Director’s Decision. The Board further found that the applicant had not made out a case in respect of the risks he claimed. See §§46-55 of the Board’s Decision. It also found that internal relocation was an option open to him even if he were subjected to those risks [56-60].

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 claimed that his enemy had embarked on new level, which he was reluctant to disclose before getting legal advice. He further said that his enemy had filed a false charge against him in connection with drugs alleging that he is the mastermind. His family has moved to live in somewhere else. He said he is suffering great mental stress. He is unable to obtain document evidence such as the first information report from the police in India. Finally, he disclosed that his enemy is the landlord, who had fabricated false charge of drug against him. His father advised him not to return to India.

17.The Director considered that the applicant relied upon the same or similar facts of his previous claim as his enemy remain the same enemy, which had been considered in his previous claim.

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 affirmation in support of his application, in which he stated his reasons below:

a.  that the Director had placed an unnecessarily high threshold for his application;

b.  that the Director had not taken his unique situation into consideration;

c.  that his application should be considered, on the one hand, his problem in India remains and he is now a wanted person and, on the other hand, the Director’s determination is biased;

d.  that there was no screening interview for him, which is unfair;

e.  that the Director had failed to consider that if he is arrested in India for the false charge, because of the police being corrupt, he would not get justice in India and the jail condition there is horrible;

f.    that he does not have opportunity of appealing the Director’s Decision to the Board, which is contrary to the principle of fairness and justice; and finally,

g.  the Director was biased and the Department is merely trying to dispose of his case as quickly as possible without due care to the information and evidence available.

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, I had explained the relevant legal principles to the applicant. The applicant said he had nothing to say.

22.As to the grounds in paragraph 19 above, only ground 19.d and 19.f require consideration whilst the other grounds are his bare assertions or opinions without evidence in support. Ground 19.d is provided under the Ordinance. Since there had been screening interview for his previous claim, the law provides for no screening interview again since the applicant relies upon the same or similar factual basis for his subsequent claim. Ground 19.f is also provided under the Law and for the same reason, there is simply no provision for the Director’s Decision to be re-considered by the Board. There is nothing amiss in these procedures.

23.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.

24.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

25.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.

26.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.

27.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.

28.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 about his comments on the intended RPO, he said he had nothing to say.

29.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 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