Bah Mohamed v. Director of Immigration

HCAL 1289/2022

[2023] HKCFI 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1289 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 25 July 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 851 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 14 December 2022.

The procedural history

4.The applicant is a Guinean national.  He arrived in Hong Kong on 27 July 2012 and was permitted to stay as a visitor until 10 August 2012.  He did not depart and overstayed.  On 6 July 2015 he was arrested by the police and transferred to the Immigration Department.  The applicant lodged a non-refoulement claim on 10 July 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 24 April 2017, the Director refused his claim on all applicable risks.

6.The applicant appealed to the Torture Claims Appeal Board (“the Board”). The Board, by the Board’s Decision dated 26 April 2018, dismissed his appeal on all applicable grounds of his claim.

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 24 August 2020 (“the Court’s Order”).

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

9.His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 11 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 10 June 2022.

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

The subsequent claim application

13.The applicant is a Christian. The applicant’s previous claim is based on the fears that, if he returned to Guinea, he would be harmed or even killed by his Muslim relatives unless he converted to Islam, and that if he returned to Uganda where he had previously resided, he would be harmed or even killed by a previous customer named Zakaria to whom he owed money.

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

15.The applicant lodged an appeal/petition to the Board. The Board rejected his appeal for the reasons that the applicant had never been physically or mentally harmed by his Muslim relatives or by Zakaria, and because the threats he had received were isolated incidents. The Board found that he did not suffer ill-treatment to the necessary level required.  The Board also found that his conflicts with his Muslim relatives and Zakaria were in the nature of private disputes.  The Board thus concluded that there was no real risk of harm in the event of refoulement.  The Board also concluded that state protection was available and internal relocation viable.  The Board dismissed the applicant’s appeal on 26 April 2018 on all the applicable grounds.

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 his statement, in which he claimed that if he is to return to Uganda, he will be harmed or even killed by Zakaria because he is still unable to repay him and he will be harmed or even killed by Muslim relatives and the Muslim because he is still a Christian.

18.The Director considered that those reasons above were in fact those grounds in his previous claim, which had been considered by the Board. His appeal was dismissed by the Board.

19.The Director therefore found that the applicant relied upon the facts, which when considered together with his previous claim, would 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 which he did not raise any specific ground.

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. Before me, the applicant said he understood the Director’s reasons for rejecting his application for subsequent claim and he agreed that the Director was not in error in making his decision.

23.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.”

24.There is no valid reason from the applicant to challenge the Director’s Decision. Therefore, 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 of what comments he had 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 10^th day of February 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