Edwead John v. Director of Immigration
Read the full judgment text of HCAL 604/2022 on BabelCite. This High Court CFI judgment was delivered on 3 January 2023.
1. This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 22 June 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.
Cites 7 cases
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HCAL 604/2022 [2023] HKCFI 57 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 604 of 2022
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: Introduction 1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 22 June 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds. 2.The Applicant is a 46-year-old national of Ghana who came to Hong Kong on 12 November 2003 on transit to UK, and on 15 November 2003 when he was about to depart for UK, he was arrested for holding a forged passport for which he was subsequently convicted and sent to prison for 6 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken to be a non-refoulement claim on the basis that if he returned to Ghana he would be harmed or killed by the tribal people in his home village over some dispute. Previous Non-Refoulement Claim 3.By a Notice of Decision dated 12 May 2015 and a Notice of Further Decision dated 28 November 2016 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”). 4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim which was uncorroborated by any reliable or documentary evidence, that after all these years since he left the country it is doubtful that there would still be any adverse interest from anyone in him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Ghana, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Ghana with a large population of 25 million people spread across a vast territory of more than 238,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him. 5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 8 March 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions. 6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 8 February 2018 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 76/2017 [2018] HKCFI 267). 7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 23 April 2020 (CAMP 99/2019 [2020] HKCA 225). 8.The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 5 March 2021 ([2021] HKCA 219), and then by the Appeal Committee of the Court of Final Appeal on 5 November 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A. Request To Make Subsequent Claim 9.Some 5 months later on 20 April 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that the decision of the Court of Final Appeal is unfair in ignoring the potential dangers that he will face if refouled to his home country, and that he has lived in Hong Kong for more than 18 years as a good citizen that he just wants to be allowed to remain here. 10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:
11.Accordingly, on 5 May 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did on 31 May 2022 with supporting documents. 12.By a Notice of Decision dated 22 June 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success, and that whatever adverse interest there might have been in him when he left Ghana more than 18 years ago would have all dissipated after all these years. 13.On 12 July 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he merely repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 14.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse his leave application. Restricted Proceedings Order 15.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 5 November 2021, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him. 16.Section 27 of the High Court Ordinance, Cap 4 provides as follows:
17.Relevantly, Section 27A also provides:
18.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section. 19.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]). 20.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38]–[40]). 21.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and unless a RPO is made against him, of which he was unable to raise any valid objection at the hearing of his application, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary. 22.Accordingly, I make the following order:
Disposition 23.The Applicant’s application for leave to apply for judicial review is dismissed. 24.A RPO in terms of paragraph 22 be made against the Applicant. Dated the 3rd day of January 2023.
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
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Cases cited in this judgment