Usman Gani v. Director of Immigration

HCAL 395/2023

[2023] HKCFI 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 395 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 Applicant being present 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 20 December 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 263 of 2017 (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 Notice of Hearing was served on the applicant at his last known address on 17 March 2023 with the hearing date fixed at 10:30 a.m. on 19 April 2023.

4.The applicant filed an affirmation dated 17 March 2023, in which he said:

“…My name is Usman Gani and my case no. is HCAL 395/2023 with this application I am going to withdraw my case because I want to go back to my country. Please accept my application. Thanks.”

5.Since the applicant now applies to withdraw his application, it is not necessary to set out full details of the procedural history and the reasons for rejecting his previous claim. However, I consider that since the applicant had abused the proceedings by making this subsequent claim application and in order to prevent him from further abusing the judicial process by making further applications to the court again, RPO is still necessary. I shall set out the main issues in support of the Court’s decision below.

The procedural history

6.The applicant is a national of Pakistan. He had come to Hong Kong as a visitor in 2004 and he overstayed. He lodged a non-refoulement by way of written significations of 19 April 2013 and 23 April 2013 on all applicable grounds of Torture risk[1], the BOR 3 risk[2], the Persecution risk[3] and the BOR 2 risk.

7.His non-refoulement claim was refused by the Director by the Director’s Notice of Decision and the Director’s Notice of Further Decision.

8.His appeal to the Board was dismissed by the Board’s Decision.

9.He applied to the High Court for leave to apply for judicial review of the Board’s Decision and failed. He appealed against the Court’s Decision all the way to the Court of Final Appeal. His application was dismissed by the Court of Final Appeal on 12 April 2022.

10.He then made an application for subsequent claim.

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

12.The reason for the Director to reject the applicant’s application for subsequent is that the Director did not accept that there was a significant change of circumstances since the applicant’s previous claim was finally determined; and the change, if any, when taken together with the materials previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success. His application made under section 37 ZO of the Ordinance therefore failed.

The application for leave to apply for judicial review

13.The applicant has filed an affirmation in which he said that he was not satisfied with the Director’s Decision and that it was not safe for him to return to his country.

DISCUSSION

14.Now the applicant has applied for leave to withdraw his application. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

15.The applicant’s application is therefore dismissed.

The RPO

16.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.

17.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.

18.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.

19.Although the applicant applies to withdraw his application, I am satisfied that, if not restrained, it is possible that the applicant may proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. For the prevention of further abuse by the applicant, I shall therefore make the RPO against the applicant 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

20.The applicant’s application is dismissed.

21.RPO in terms of paragraph 19 be made against the applicant.

Dated the 4^th day of April 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