Mitra Joy Kumar v. Director of Immigration

HCAL 220/2023

[2023] HKCFI 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 220 of 2023

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 November 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1898 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 15 March 2023.

The procedural history

4.The applicant is a national of India. He had come to Hong Kong as a visitor in 2008 and he overstayed. As a result, he was fined and repatriated back to India. On 8 July 2016, he surrendered to the Immigration Department for illegal remaining in Hong Kong. He admitted that he sneaked into Hong Kong on 7 June 2016. He then lodged a non-refoulement by way of a written signification of 8 July 2016 on all applicable grounds of Torture risk[1], the BOR 3 risk[2], the Persecution risk[3] and the BOR 2 risk.

5.By Notice of Decision dated 25 January 2017, the Director refused his claim on the above risks.

6.His appeal to the Board was dismissed by the Board’s Decision on 17 April 2018.

7.His application to the Court of the First Instance for extension of time to apply for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 29 June 2020 “(the Court’s Order”).

8.His appeal against the Court’s Order was dismissed by the Court of Appeal on 15 June 2021.

9.His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 23 December 2021.

10.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 26 July 2022.

11.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 September 2022.

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

The subsequent claim application

13.The applicant’s previous claim was based on his allegations that if he returned to India, he would be harmed or killed by members of the Communist Party of India (Maxist) (the “CPIM”) for reasons arising from a political dispute.

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

15.The applicant’s appeal to the Board was dismissed for the reasons that his evidence was unreliable; that he refused to answer the Board’s questions despite the Board’s warning that there were inconsistencies in his evidence; that state protection would be available to him and that internal relocation was viable for him.

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.For his application for his subsequent claim, the applicant had submitted his statement together with 4 photographs. Having considered the evidence, the immigration officer was of the view that the photographs do not support his application as they are inconsistent with the evidence and that the applicant is relying on the same facts in support of his previous claim for his subsequent claim application. The immigration officer did not accept that there has been a significant change of circumstances since his previous claim was finally determined.

18.The Director therefore found that the applicant had failed to submit additional materials, which when considered together with his previous clam, would give him a reasonable chance of success for his subsequent claim. The Director therefore dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

19.The applicant has filed an affirmation in which he said that the Director’s Decision was reached without himself going to India to understand the situation and that he will have danger if he returns to India.

DISCUSSION

20.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).

21.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 understands the Director’s reasons for rejecting his subsequent claim and that he still has a problem in India and he wants to stay here. However, he admitted that he had relied upon the same facts in his previous claim in support of his subsequent claim application.

22.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.”

23.The reasons stated in his affirmation fall apart as he had admitted in court that he relied on the same facts in his previous claim in support of his present application. 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

24.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.

25.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.

26.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.

27.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.

28.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

29.The applicant’s application is dismissed.

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

Dated the 30^th 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