Amadi Collins Chbuike v. Director of Immigration
Read the full judgment text of HCAL 1180/2022 on BabelCite. This High Court CFI judgment was delivered on 13 January 2023.
1. This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 9 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 824 of 2017 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
Cites 7 cases
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HCAL 1180/2022 [2023] HKCFI 105 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1180 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 K.W. Lung:
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 9 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 824 of 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 30 November 2022. The procedural history 4.The applicant is a Nigerian national. He arrived in Hong Kong on 18 March 2008 by a passport. He was permitted to stay as a visitor for 21 days. However, he overstayed. He reported to police that he had lost his passport. He was released on police bail, but he never returned. On 23 April 2014. he lodged a claim for non-refoulement protection on the applicable grounds of the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4]. 5.By Notice of Decision dated 2 September 2016 and Notice of Further Decision dated 6 June 2017, collectively called (“the Director’s Decisions”), the Director refused his claim on all applicable risks. 6.The applicant appealed the Director’s Decisions to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 16 August 2017 (“Board’s Decision”). 7.His applications to appeal for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance by its Orders respectively dated 15 May 2020 and 18 September 2020 (“the Court’s Orders”) 8.His application for appeal against the Court’s Orders out of time was dismissed by the Court of Appeal on 23 March 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 4 June 2021. 10.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 31 March 2022. 11.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 June 2022. 12.By the Director’s Decision, the Director refused his application. The subsequent claim application 13.In the applicant’s previous claim, the applicant claimed that if he were to be returned to Nigeria, he would be harmed or killed by his paternal uncle Vincent and Michael because of a land dispute and by the Nigerian authorities because of his involvement with the Indigenous People of Biafra (“IPOB”). 14.The Director found that his claim was not substantiated. 15.He appealed the Director’s Decision to the Board. The Board considered the evidence and rejected the applicant’s claim based on the land dispute with his uncle and his involvement with IPOB activities. The Court of Appeal had reviewed his case on appeal and passed the comments:
16.Having read the decision of the TCAB of 16 August 2017, we are satisfied that his claims had been properly considered by the TCAB. The background and relevant facts to his claims were set out by the TCAB in its decision. At paragraphs 57 to 76 of the TCAB’s decision, it clearly and cogently explained the reasons for rejecting his non-refoulement claims based on the land dispute with his uncle and his involvement with IPOB activities.”[5] 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 to the immigration officer a statement, media articles and video recordings in support of his case. His current fears are from:
18.The Director considered the evidence and found that in respect of 17. a., it is an issue that had been considered in the previous claim and was rejected; that in respect of 17.b., it was not raised in his previous claim, but there was no evidence to support his alleged facts and that in respect of 17.c., he relied upon the hearsay evidence from his friend in Nigeria, which was not given much weight and it was only considered as mere speculation. As to the video recordings, they showed massive killings of the Christians in Nigeria by the Muslims. But there was no evidence to show that the applicant is personally at risk if he returns to Nigeria. However, the Director considered that even if his facts were accepted, he can still have state protection and internal relocation is a viable option for him. 19.The Director therefore found that the applicant relies upon the facts, which 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 20.The applicant has filed an affirmation in support of his application, in which he said that his life is under threat. DISCUSSION 21.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). 22.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. 23.Before me, the applicant said that the Board and the Court did not consider the documentary evidence submitted to them by him. He further complained that the Board did not consider his evidence seriously and the Court in the application for leave to apply for judicial review of the Board’s Decision did not provide him with an interpreter and he was not given the chance to make oral submissions to the Judge. These are serious allegations. There is no other evidence in support of his allegations. I consider that it is not necessary to make further investigation into his allegations in view of the fact that his allegations of new facts are clearly set out in the Director’s Decision. The applicant did not add other factual allegations other than those set out in the Director’s Decision. Therefore, his subsequent claim had been duly and properly considered by the Director. The Court of Appeal had considered the Board’s Decision and made its findings on the Board’s Decision. There are no merits in his application for leave for judicial review of the Board’s Decision or the Director’s Decision on his subsequent claim. 24.I find that there is no valid reason to challenge the Director’s Decision. 25.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 26.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. 27.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. 28.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. 29.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 of what comments he had on the intended RPO, he said “please consider my position”. 30.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:
DISPOSITION 31.The applicant’s application is dismissed. 32.RPO in terms of paragraph 30 be made against the applicant. Dated the 13th 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
Form CALL-1 [1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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Cases cited in this judgment