Ajaegbu Martin Chiaka v. Director of Immigration

HCAL 1173/2022

[2023] HKCFI 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1173 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.   Extension of time for the application for leave to apply for judicial review of the decision of Director of Immigration dated 19 July 2022 refused; and

2.   Leave to apply for Judicial Review be refused; and

3.   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 19 July 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1863 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”). The application filed on 31 October 2022 is out of time for 12 days. There is no reason from the applicant for his delay. The court will deal with this issue below.

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 28 November 2022.

The procedural history

4.The applicant is a Nigerian national. He came to Hong Kong on 10 May 2009 and was permitted to stay as a visitor until 24 May 2009. He overstayed and was arrested by police. He was referred to the Immigration Department. He lodged his non-refoulement claim on 21 November 2015 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 29 March 2017, the Director refused his claim on all applicable risks.

6.The applicant appealed to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 11 June 2018 (the “Board’s Decision”).

7.His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance by its Order dated 14 July 2020 (“the Court’s Order”)

8.His appeal against the Court’s Order was first dismissed by the Court of Appeal on 29 March 2021.

9.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 4 April 2022.

10.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 19 May 2022.

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

The subsequent claim application

12.In the applicant’s previous claim, the applicant claimed that, if refouled, he would be harmed or even killed by his paternal uncle, Aloyshou Manu Ajaegbu, who coveted his father’s land, which he would inherit from his father in future.

13.The Director found that his previous claim was not substantiated.

14.He appealed to the Board. The Board considered the applicant’s evidence and found that the risk of the applicant being caught up in violence to be remote, and there was no real risk of him facing harm upon his return to his own country [75]. See §§10-75 of the Board’s Decision for detailed discussion. The Board also found that internal relocation was an option open to him [77-82]. The references refer to the Board’s Decision.

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 immigration officer additional information and news articles. He relies on the following sources of fear if he returns to Nigeria:

a.  he will be harmed or even killed by his uncle because he has a land dispute with him;

b.  his life will be at risk because of the unsatisfactory security situation in Nigeria; and

c.  he will be suppressed by the Muslim Authority because he is a Christian.

17.The Director considered the evidence and found that his claimed fears are speculative, far-fetched and unfounded. There is no evidence to support his claim that he will face a foreseeable, real and personal risk of serious harm or ill-treatment if he returns to Nigeria. The documents produced do not advance his case.

18.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

19.The applicant has filed an affidavit in support of his application, in which he stated:

(a)   the Director failed to recognize the renewed threat from his paternal uncle in relation to the land dispute and the new threat he received from his uncle on 30 April 2022 through his brother to him, such threats are serious to his life and safety if he is to be returned to Nigeria;

(b)   the Director failed to consider the current dangerous state of insecurity in Nigeria and the state’s inability to contain the insurgencies of Banditry, Noko Haram, ISWAP, unknown gunmen, kidnappings, Fulani Hardsmen, Ebubegu etc. had led the entire country into a state of lawlessness and free for all, which will be aggravated by the presidential election in 2023.

DISCUSSION

20.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay, (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 19 October 2022. However, I shall first consider the merits of the applicant’s case.

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 he has given the documents to the Director. His country is dangerous and his enemy may kill him.

24.The applicant’s grounds in support of his application in his affidavit and before the Court had been considered and dealt with by the Director as can be seen in paragraphs 15-20 of the Director’s Decision. The Director had given his reasons in the Director’s Decision. He also considered that those grounds had been raised in his previous claim and were rejected by the Board. The applicant has not raised any valid grounds to challenge the Director’s findings.

25.There is no realistic prospect of success in his subsequent claim, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Director’s Decision. Accordingly, I dismiss his application.

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 he has no comments.

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:

(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

31.Extension of time for the applicant to file his application for leave to apply for judicial review of the Director’s Decision be refused.

32.The applicant’s application is dismissed.

33.RPO in terms of paragraph 30 be made against the applicant.

Dated the 27^th 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