Munatsi Kingsley v. Director of Immigration

HCAL 1232/2022

[2023] HKCFI 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1232 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 8 August 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 8 August 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 925 of 2017 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”). The applicant’s application filed on 9 November 2022 is late for only 1 day. I shall 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 7 December 2022.

The procedural history

4.The applicant is a national of Botswana.  He entered Hong Kong on 23 June 2008 and was permitted to remain as a visitor until 21 September 2008.  He did not depart upon the expiry of his limit of stay.  He was arrested by the police on 12 April 2014 for overstaying.  He was found guilty of the offence for breach of stay condition by overstaying and was sentenced to six-month imprisonment.  After his release from prison, he lodged his non-refoulement claim on 12 August 2014 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 two notices of decision dated 26 April 2016 and 27 April 2017 (“the Director’s Decisions”), the Director refused his claim on all applicable risks. The former decision covered the BOR 3 risk, the persecution risk, and the torture risk, and the latter covered the BOR 2 risk.

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 7 July 2017 (the “Board’s Decision”).

7.His application for leave for judicial review of the Board’s Decision out of time was dismissed by the Court of the First Instance by its Order dated 29 November 2018 (“the Court’s Order”).

8.His appeal against the Court’s Order out of time was refused by the Court of First Instance on 2 April 2019.

9.His appeal against the refusal of extension of time order was dismissed by the Court of Appeal on 11 July 2019.

10.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 30 March 2022.

11.He applied to the Director for making a subsequent claim for non-refoulement protection by letters dated 4 May 2022 and 18 May 2022.

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

The subsequent claim application

13.The applicant’s previous claim is based on the fear that he would be harmed or killed by his business partners (“his enemies”) because he lost some of the goods he purchased for a joint venture with them. He also said they demanded him to join the Al-Shabaab (an extreme terrorist group in Africa) as a suicide bomber or militant.

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

15.The applicant lodged an appeal/petition to the Board against the Director’s Decisions.  An oral hearing was held on 10 May 2017, during which the applicant gave evidence.  After hearing the applicant, the Board did not find him nor his case to be credible.  There were serious inconsistent differences between the account provided in his Non-refoulement Claim Form and his oral evidence given during the hearing. The Board found no credible evidence that the applicant would be subjected to any risk of harms if he returned to Botswana.  The Board dismissed his appeal/petition on 7 July 2017.

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, the applicant submitted to the immigration officer additional information. He relies upon the same reason of losing the mobile phones and his enemies will, for that reason, harm or even kill him unless he repays them the cost and profits for the lost mobile phones. Further, he has raised that his half-brother and half-sister in Botswana had been shot dead. He was assaulted and kidnapped in Wan Chai by some unknown people, whom he suspected to be related to his enemies and he had reported this matter to police. He has produced a police report and 2 copies of photos in respect of the lost mobile phones and murder of his half-brother and half-sister. He considers that state protection is not available to him and internal relocation is not viable as his enemies have wide network. The applicant also raised BOR 5 risk in support of his subsequent claim.

18.The Director is of the view that the applicant is basically relying upon his old story in his previous claim in support of his subsequent claim. The loss of the mobile phones is the old story, which the Board had considered and raised query as to why he had taken 8 years after the loss to make the report to police. Since there was no acceptable reason for it, the Board had rejected this alleged fact. There is no direct evidence to show that the murder of the applicant’s half-brother and half-sister and his kidnap and assault in Wan Chai are related to his enemies in Botswana. The photos do not advance his case as they are not evidence to show that the applicant is personally at risk if he returns to his country. State protection and internal relocation are the issues that had been considered and rejected by the Board. There is no new substance to review these issues. BOR 5 risk is not non-derogable or absolute right and it is not included in section 5(2)( c) of the Hong Kong Bill of Rights Ordinance. Therefore, there is no authority to support that BOR 5 risk should be a valid ground in support of non-refoulement claim.

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 affidavit in support of his application, with which he submitted a 27-page written submissions. In summary, his complaints boil down to:

a.  the Director was unfair as he had adopted his past events without taking into account of the events after the Board hearing, such as that his half-sister and half-brother had been murdered; his enemies are still looking for him; his was kidnapped and assaulted in Wan Chai, Hong Kong; his non-derogable fundamental rights and freedoms were violated and he will be subjected to ill-treatment, torture and threats to his life, in particular, he relies upon BOR 5 risk;

b.  the Board was unfair to handle his case as the adjudicator did not consider the fact that he had reported the loss of the mobile phones to police in 2008 of 800 pieces, which was not the correct amount after he had retrieved those from the storeroom and the correct figure should be 440 pieces, which he reported to police in 2016;

c.  he disagrees with the Director and the Board on the findings of level of risk if he returns to his country, state protection being available to him and viability of internal relocation;

d.  the way the Director handled his case by sending letter to him, which he did not receive, and then proceeded to consider his case on paper; the immigration officer having failed to make investigation with the police on the background of those people who had kidnapped and assaulted him in Hong Kong; and

e.  finally, the High Court in the hearings of his applications, relying upon the principles that the courts are not to make investigation into the facts

DISCUSSION

21.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 delay is only 1 day, therefore, I shall first consider the merits of the applicant’s case.

22.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).

23.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

24.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

25.The applicant’s complaints set out in paragraph 20 supra can be viewed from the fact that the Director had, in the Director’s Decision, set out almost all his complaints, except his complaints against the immigration officer and the High Court, and had dealt with them with reasons stated therein.

26.The Director was clearly right to take into consideration of his facts in support of his previous claim in order to determine whether he was allowed to lodge his subsequent claim. This is provided by section 37ZO of the Ordinance. Even if one takes the applicant’s explanation that he had reported the loss to police in 2008 with an error on the amount of 800 pieces. The fact that he had taken 8 years to rectify the amount is unreasonable, to say the least. He should have retrieved the boxes of mobiles phones shortly after he discovered the loss of the mobile phones outside the storeroom. He may disagree with the findings of the facts by the Director and the Board. But the law provides that the finding of the facts of the Board is final, only subject to judicial review. There may be miscommunication between the immigration officer and the applicant. However, it does not affect the assessment of his subsequent claim. This can be shown by considering his written submissions to this Court for his application. As he had declined legal service from the Duty Lawyer Office, it is unreasonable for him to complain that the immigration officer had failed making investigation with the police about his kidnap and assault. The burden of proving his case being on him, he may seek assistance from the duty lawyer to carry out the investigation for him, which service he declined. There is no ground for him to complain against the courts in the High Court for their application of the relevant legal principles to his case.

27.All of his grounds fail.

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

The RPO

29.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.

30.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.

31.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.

32.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 asked the Court to consider his facts in support of his application.

33.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

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

35.The applicant’s application is dismissed.

36.RPO in terms of paragraph 33 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