Sanyang Omar v. Director of Immigration

HCAL 830/2022

[2023] HKCFI 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 830 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 18 May 2022 be refused;

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 18 May 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 34-year-old national of The Gambia of West Africa who arrived in Hong Kong on 10 December 2014 as a visitor with permission to remain up to 10 March 2015 when he did not depart and instead overstayed, and on 12 March 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian government and authorities for supporting the political party United Democratic Party (“UDP”) which opposed the regime of then President Jammeh.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 3 October 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Gambian authorities upon his return to The Gambia due to the absence of any past ill-treatment from them, that there is no evidence of him ever being targeted by the former regime of President Jammeh, that whatever adverse interest that regime might have in the Applicant would have dissipated or disappeared since President Jammeh lost the election in 2016 and had gone into exile and that the new government under President Barrow has since been promoting human rights reforms and protections for the Gambian citizens and with state protection available that there is no reason for the Applicant to fear any harm from the former regime or its former security agencies, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a vast territory of more than 10,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 30 August 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 19 August 2020 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1877/2018 [2020] HKCFI 2035).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 17 March 2021 (CACV 415/2020 [2021] HKCA 303).

8.The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 17 June 2021 ([2021] HKCA 829), and then by the Appeal Committee of the Court of Final Appeal on 11 February 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Less than one month later on 3 March 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he still fears of harm from the people of the former regime of President Jammeh and their political party Alliance for Patriotic Reorientation and Construction Party (“APRC”) if refouled to his home country, and that there is also a court case filed against him that he fears of being prosecuted by the current government as there have been no reforms or improvement to human rights situation under the current regime of President Barrow.

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) by a letter dated 6 May 2022 enclosing additional supporting documents.

12.By a Notice of Decision dated 18 May 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined including the unchallenged findings by both the Director and the Board in his previous claim of no evidence that he had ever been targeted by anyone for any reason in his home country prior to his departure, and hence whatever changes that might have taken place since even if true when taken together with the material previously submitted in support of his previous claim would not give his subsequent claim any realistic prospect of success, while the authenticity of the document in support of his alleged court case is doubtful, but even if true that it merely shows a civil claim involving some monetary dispute over his previous job in his home country that it is not accepted that there will be any risk of any harm from the Gambian authorities if he is to return to his home country to face the litigation under the current legal system in The Gambia.

13.On 25 August 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forth the following grounds for his intended challenge:

(1)  That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which has led to an unfair outcome of rejecting his claim;

(2)  That the Director rejected the Applicant’s claim without any proper inquiry which is far away from the place where he has the problem; and

(3)  That the director reached the decision wrongly in assessing the Applicant’s request for making a subsequent claim.

14.However, by then the Applicant was out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months form the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the three-month period for him to file his Form 86 fell on 18 August 2022, the Applicant was therefore 7 days late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 7 days may not be considered as significant, for which he explained at the hearing that for issuing a second application for leave to apply for judicial review regarding a subsequent claim, he was required to first appear before the Practice Master to explain his application before it could be formally filed, but thereafter when he was allowed to do so, he was already out of time.

17.While the Applicant was unable to provide any further details such as the date when he appeared before the Master, I accept that it is the current practice for the issue of such application regarding subsequent claims, and given his relative insignificant delay, I propose to focus on the prospect of his intended application.

18.However, those grounds put forward by the Applicant for his intended challenge as stated above are all just some bare and vague assertions of his without any relevant details or particulars or elaboration as to how they would apply to his case, or in what way would state acquiescence be relevant to his claim, or how did the Director fail to make proper inquiry as to his claim when it is clear that the immigration officer did conduct proper and sufficient inquiry and assessment of the latest COI relevant to his home country including those produced and relied on by the Applicant in support of his request, and which he also produced in his written submissions for his present application before me.

19.If such information were already before the Director, then the decision clearly shows that they have all been properly considered and assessed by the Director before refusing the Applicant’s request, as such matters are clearly and primarily within the province of the Director for his determination, and which the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision clearly and properly identified by the Applicant, but of which he was unable to do so either in his written submissions or at the hearing of his application. As such, and for the reasons given, I do not find any of the Applicant’s proposed grounds reasonably arguable for his intended challenge.

20.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and given the unchallenged findings by both the Director and the Board in his previous claim of no evidence of the Applicant ever being targeted for harm by anyone in his home country prior to his departure and for there to be any reason to believe that there will be such risk upon his return to his home country some 8 years later, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I therefore refuse to extend time for his delay and accordingly dismiss his application.

Restricted Proceedings Order

21.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 11 February 2022, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

22.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless –

(a) it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b) it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1) –

(a) may be made on such terms and conditions as the Court of First Instance thinks just; and

(b) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

23.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

24.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.

25.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

26.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).

27.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

28.Accordingly, I make the following order:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to 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 his 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 designated Judge 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 this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by 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 designated Judge, 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 under 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; and

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

Disposition

29.The Applicant’s application for leave to apply for judicial review is dismissed.

30.A RPO in terms of paragraph 28 be made against the Applicant.

Dated the 27^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