Khan Khurshid v. Director of Immigration

HCAL 1299/2022

[2023] HKCFI 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1299 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 28 October 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2130 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 as a visitor on 16 September 2015. He overstayed since 1 October 2015. On 5 October 2015, he surrendered to the Immigration Department. He raised a non-refoulement claim on 25 April 2016 on Torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and Persecution risk[4].

5.By Notice of Decision dated 28 April 2017, the Director refused his application on all applicable grounds.

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 7 August 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 30 March 2021 (“the Court’s Order”).

8.His appeal against the Court’s Order was dismissed by the Court of Appeal on 14 September 2021.

9.His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 16 November 2021.

10.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 27 June 2022.

11.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 9 August 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 3 moneylenders as he was unable to repay his debt.

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

15.The applicant lodged an appeal/petition to the Board. An oral hearing was held. The Board considered the applicant’s evidence and found that the applicant is not credible and his evidence was rejected.

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 and documents. In gist, his sources of fear are:

a.  he will be harmed or even killed by his creditors;

b.  he will be discriminated and persecuted because he is a Muslim; and

c.  his life will be in danger because of the religious conflicts and violence in India.

18.The Director is of the view that the applicant is basically relying upon his old story in his previous claim on 17.a. In relation to 17.b and 17.c, there is no evidence that he will be personally subjected to such risks. The Board, in the previous claim, had held that the state was not involved; state protection and internal relocation were available to 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 and said that the Director’s Decision is wrong as he had failed to make proper inquiry without carefully understanding his situation. He invites the Director to go to his country to appreciate his dangerous situation there.

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. His wife was injured and he simply wants some time to stay here and he will go back.

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 Director can rely upon the country of origin information to understand the situations in India without going to India himself. There is no valid reason to challenge the Director’s Decision. Therefore, there is no realistic prospect of success in his subsequent claim and I dismiss his application.

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 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