Gurung Indra Kumar v. Director of Immigration

HCAL 488/2023

[2023] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 488 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 absent 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 16 March 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 151 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 was absent before the Court on 3 May 2023. His application is therefore dealt with on paper.

The procedural history

4.The applicant is a national of Nepal. He came to Hong Kong on 5 February 2014 and was permitted to stay as a visitor until 12 February 2014. However, he overstayed since 13 February 2014. On 23 June 2014, he was arrested by police for breach of condition to stay. On 25 June 2014, he lodged his non-refoulement claim on grounds of Torture risk[1], the BOR 3 risk[2], the Persecution risk[3] and the BOR 2 risk[4].

5.By Notice of Decision dated 15 April 2016, the Director refused his claim on the Torture risk, the BOR 3 risk and the Persecution risk.

6.By Notice of Further Decision dated 28 March 2017, the Director refused his claim on the BOR 2 risk.

7.His appeal of the Director’s Notice of Decision and Notice of Further Decision to the Board was dismissed by the Board’s Decision on 9 June 2017.

8.His application to the Court of the First Instance for extension of time to apply leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 11 June 2019 (“the Court’s order”). By the Court’s order his application for leave to apply for judicial review of the Board’s Decision was also dismissed.

9.He sought leave to appeal against the Court’s order and his application was dismissed on 21 August 2019.

10.By a summons, he renewed his application for leave to appeal against the Court’s order to the Court of Appeal and his application was dismissed by the Court of Appeal on 21 August 2019.

11.By another summons filed on 29 August 2019, he renewed his application for leave to appeal against the Court’s order to the Court of Appeal. On 11 June 2020, the Court of Appeal dismissed his application.

12.His Notice of Motion for leave to appeal against the Court’s Order to the Court of Final Appeal was dismissed by the Court of Appeal on 13 November 2020.

13.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 8 October 2021.

14.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 October 2021.

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

The subsequent claim application

16.The applicant’s previous claim was based on his allegations that if he returned to Nepal, he would be harmed or killed by the Unified Communist Party of Nepal members.

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

18.The applicant’s appeal to the Board against the Director’s decision was dismissed for the reasons that the applicant had failed to establish that he had real risk of being harmed or killed if he returned to Nepal. Further, state protection would be available to him and internal relocation was a viable alternative.

19.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.

20.For his application for his subsequently claim, the applicant had submitted additional materials to the immigration officer. In gist, he says that he will be harmed or killed by UCPN members because they want to take revenge for his rejection to join their party; that he will be arrested by Nepalese police because UCPN has framed him up in some false cases; and that he will suffer from health risk due to global pandemic.

21.Having considered the additional materials, the immigration officer is of the view that the applicant relies on the same facts of his previous claim in support of his subsequent claim, which when considered together with his previous clam, would not give him a reasonable chance of success for his subsequent claim and that global pandemic is a global phenomenon and not only confined to Nepal. The Director therefore dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

22.The applicant filed Form 86 on 29 March 2023 for judicial review of the Director’s Decision. The applicant has filed an affirmation in which he set out the grounds as follows:

(1)  the immigration officer did not consider his unique situation fairly or carefully;

(2)  the immigration officer’s decision is biased and did not rely on any facts of the case;

(3)  the immigration officer simply repeated what the Board had said;

(4)  there was no interview for the screening process, which is unfair;

(5)  the immigration officer did not assist him to obtain the warrant of arrest;

(6)  it is unfair for the immigration officer to ignore evidence which is not in the previous claim; and

(7)  there is no appeal to the Board, which is unfair.

DISCUSSION

23.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).

24.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

25.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.”

26.The reasons stated in his affirmation do not assist his application. Grounds (1), (2), (3), (6) are his bare assertions of opinions without any evidence in support. Grounds (4) and (7) are the procedures for the subsequent applications. Since there have been screening process and appeal for the previous claim, the subsequent claim only concerns whether there are new facts or grounds to be considered together with his previous claim. There is nothing amiss in the procedures. Ground (5) is not a valid ground for his application.

27.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

28.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.

29.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.

30.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.

31.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. However, the applicant was absent for the hearing. The applicant has therefore abandoned his right to show course why the RPO should not be made against him.

32.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

33.The applicant’s application is dismissed.

34.RPO in terms of paragraph 32 be made against the applicant.

Dated the 3^rd day of July 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