Ali Jabed v. Director of Immigration
Read the full judgment text of HCAL 1423/2022 on BabelCite. This High Court CFI judgment was delivered on 3 March 2023.
1. This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 10 June 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1763 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
Cites 7 cases
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HCAL 1423/2022 [2023] HKCFI 535 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1423 of 2022
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
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 10 June 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1763 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 9 January 2023. 4.When this decision is being prepared, the applicant submitted an application for withdrawing his application, stating that his problems in his country had been solved and his sister is very sick, so he wants to go back as soon as possible. His application for withdrawal is unnecessary because his application will be dismissed with RPO to be imposed on him for the reasons set out below. This will prevent him from making the same application to the court on the same facts. The procedural history 5.The applicant is a national of India. He arrived in Hong Kong on 28 April 2008 as a visitor and was permitted to stay for 14 days. He overstayed and was arrested by police on 13 May 2008. On 15 May, 2008, he was referred to the Immigration Department for further investigation. He lodged his non-refoulement claim on 21 May 2008 on the grounds of the Torture risk[1], the BOR 2 risk[2], the BOR 3 risk[3] and the Persecution risk[4]. 6.By Notice of Decision dated 2 December 2016, the Director refused his claim on the above risks. 7.The applicant appealed to the Torture Claims Appeal Board (“the Board”). The Board, by the Board’s Decision dated 13 August 2018 (“the Board’s Decision”), dismissed his appeal. 8.His application to the Court of the First Instance for leave to have judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 8 May 2020 (the “Court’s Order”). 9.His appeal against the Court’s Order was dismissed by the Court of Appeal on 16 November 2020. 10.His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 30 April 2021. 11.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 17 December 2021. 12.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 December 2021. 13.By the Director’s Decision, the Director refused his application. The subsequent claim application 14.The applicant’s previous claim was based on his allegations that if he returned to India, he would be killed by his maternal cousin partner, Sheikh Pintoo (“Pintoo”), because he had caused him to lose money in their joint venture of selling garment. He also alleged that he suffered from spine bifida and neurogenic bladder and is receiving medical treatment. If he is sent back to India, he may have difficulty in getting medication for his illness (“medical ground”). 15.The Director found that his previous claim was not substantiated. 16.The applicant lodged an appeal to the Board. The Board found that the alleged fact of his dispute with Pintoo was a fabrication. The Board found that the medical grounds as raised by the applicant did not give him the reason to claim non-refoulement under the Convention. The Board, therefore found that the applicant would not face a real risk of suffering proscribed harm should he return to India in the reasonable foreseeable future. It dismissed his appeal. 17.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. 18.In support of his subsequent claim, the applicant submitted to the immigration officer his statement together with some medical documents on his health problems. In gist, his problems with Pintoo remain. In addition, he is still undergoing treatments regarding his urology problem. He will not be able to afford any of the medical treatments if he returns to India. His problems with Pintoo and his medical problems had been considered by the Board in his previous claim and rejected. 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 therefore 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 said that he does not agree with the Director’s Decision without raising 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 understands the Director’s reasons for rejecting his subsequent claim. However, he said that the immigration officer did not pay attention to the documents he produced. He had asked for time to obtain documents to support his claim, which the immigration officer refused. 23.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
24.The reasons stated in his affirmation are not valid to challenge the Director’s Decision. Also, it is not true for him to say that the immigration officer did not pay attention to the documents he produced as they had been considered as shown in the Director’s Decision. He was unable to say what documents he intended to obtain for his case before the Court. 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:
DISPOSITION 30.The applicant’s application is dismissed. 31.RPO in terms of paragraph 29 be made against the applicant. Dated the 3rd day of March 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 [1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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Cases cited in this judgment