Mohammed Hafiz v. Director of Immigration

HCAL 1130/2022

[2023] HKCFI 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1130 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 22 December 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1678 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 18 January 2023.

The procedural history

4.The applicant is a national of India. He entered Hong Kong on 26 September 2003 as a visitor and was allowed to stay for 2 days. He overstayed and was arrested by police on 18 November 2007. He lodged his claim of torture protection on 3 December 2007 and was rejected by the Director of Immigration (“the Director”). Later, he lodged his non-refoulement claim on BOR 3 risk and Persecution risk. The Director rejected his claim by a Notice of Decision dated 27 August 2015. His claim on BOR 2 risk was also rejected by the Director’s Notice of Further Decision dated 9 December 2016. The Director’s Notice of Decision and Notice of Further Decision are collectively called (“the Director’s Decisions”).

5.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 13 August 2018 (the “Board’s Decision”).

6.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 20 September 2019 (“the Court’s Order”).

7.His appeal against the Court’s Order was dismissed by the Court of Appeal on 28 May 2020.

8.His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 6 August 2020.

9.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 27 August 2021.

10.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 30 September 2021.

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

The subsequent claim application

12.The applicant’s previous claim is based on the fear that he would be harmed or killed by his creditor as he was unable to repay his debt.

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

14.The applicant lodged an appeal/petition to the Board against the Director’s Decisions. An oral hearing was held. The Board considered the applicant’s evidence and found that the information provided by him in the questionnaire and the interview report about the loan was inconsistent; that his enemies did not have the intention to harm him or to kill him; that reasonable state protection and internal relocation were available to him.

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, the applicant submitted to the immigration officer additional information. He claims that his enemy has been harassing his mother and sister. If he returns to India, he will be killed by his enemy. His enemy will also inform the Indian government that he is a spy from Pakistan. He has also submitted some documents to the Director. These documents are his mother’s letter, a picture with him and his friend holding a Pakistan flag celebrating the Pakistan Independence Day in Hong Kong, a medical chit of his mother, some photographs of his mother and a copy of his brother’s passport and boarding pass to Dubai.

17.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. Also, the information that his enemies were threatening his mother and sister was obtained from his friend, which is hearsay information that cannot be tested and therefore bares no weight.

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 affirmation in support of his application and his has raised the grounds below.

a.  the Director failed to consider his facts properly as he had not taken steps to make investigation into the facts of his case before he rejected his subsequent claim.

b.  procedural impropriety: failing to apply para. 2 of the UN committee against torture, i.e. the state has the obligation provide effective means of relief for him; failing to refer to the country of origin information (“COI”) in relation to his dangerous situation in India; failing to conduct screening interview for his subsequent claim application; his enemy is still waiting for him in India.

c.  Error or misdirection in law: failing to appreciate the difference in his previous claim and his subsequent claim; failing to consider his documents and the COI and there is no basis for the Director to conclude that he and his family will not be at risk of his enemies.

20.He has also submitted some medical chits in relation to his mother’s ultra sound examination and a letter from his sister, in which she advised him not to return to India.

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 that he understood the Director’s Decision and he admitted that he relied upon the facts of his previous claim in support of his subsequent claim.

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.The applicant’s complaints set out in paragraphs 19 and 20 supra have been considered. Ground a. is only his personal opinion without any fact in support. Ground b. does not assist him as it is also his personal view only. The fact that there was no screening for his subsequent claim is a procedure provided under the Ordinance. Since there has been screening and interview by the immigration officer for his previous claim, it is not necessary to have screening for the additional information in support of his subsequent claim. There is nothing amiss about this procedure. Ground c. is also his personal comments within any evidence in support. His sister’s letter affirmed the fact that he had been staying in Hong Kong for 19 years. During this period of time, his enemies did not do harm to his family in India. The contents of this letter are, however, not subject to test or cross-examination as his sister is not in Hong Kong for further enquiry.

25.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 grant leave to the applicant 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 had nothing to say.

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.The applicant’s application is dismissed.

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

Dated the 15^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