Rustam Khan and Another v. Director of Immigration

HCAL 915/2022

[2023] HKCFI 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 915 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 Applicants 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 24 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 Applicants.

Observations for the Applicants:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 24 May 2022 refusing to allow the Applicants to make a subsequent claim for non-refoulement protection after their 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 1^st Applicant (“A1”) is a national of Pakistan in his early 40s who entered Hong Kong illegally on 12 February 2006 and surrendered to the Immigration Department almost 10 months later on 4 December 2006 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager Insar who blamed the Applicant for the suicide of his sister Shaista, and while being released on recognizance pending the determination of his claim, A1 married a wife in Hong Kong who subsequently gave birth to their son, 2^nd Applicant (“A2”) on 12 December 2015, and for whom A1 also raised a non-refoulement claim on the same basis as his claim, and that their claims were then jointly assessed together under USM on all the applicable grounds.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 1 September 2016 and a Notice of Further Decision dated 25 July 2017 the Director rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 decisions the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from Insar upon their return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from him, that in any event it was a private personal dispute between A1 and Insar without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other part of the country away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for Insar to locate them.

5.The Applicants’ appeal against the Director’s decisions was dismissed by the Board on 8 May 2018 after hearing A1 in evidence and submissions and upon finding no merits in their claim or appeal, and that it also confirmed the Director’s decisions.

6.The Applicants’ application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 9 July 2020 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended application (HCAL 838/2018 [2020] HKCFI 1431).

7.The Applicants’ subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 22 April 2021 (CACV 269/2020 [2021] HKCA 512).

8.The Applicants’ Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 5 July 2021 ([2021] HKCA 920), and then by the Appeal Committee of the Court of Final Appeal on 4 March 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Less than 2 weeks later on 14 March 2022 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that they still fear of being harmed or killed by Insar if refouled to Pakistan, that A1 has also been told by his father in Pakistan that the terrorist group Taliban are also looking for him to force him to join them or else he would be killed, and that A2 who was born and raised in Hong Kong and has been attending school under the local system that it is also feared that he would not be able to adapt to the life and school in Pakistan and may be exposed to all sorts of risks over there upon refoulement.

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, on 8 April 2022 the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 24 May 2022 the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis thereof was essentially the same as that of their previous claim, and that they failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claim was determined, or that those changes when taken together with the material previously submitted in support of their previous claim would give their subsequent claim any realistic prospect of success, that there is no reliable evidence of any risk of harm from any Taliban or that whatever involvement that A1 used to have with them prior to his departure of the country in 2006 that it is not accepted that there would still be any adverse interest of the Taliban in him after more than 17 years, and that whatever minor-specific non-refoulement claim of A2 had already been separately considered in his previous claim that there is simply no significant change since which would give A2’s subsequent claim any realistic prospect of success either.

13.On 13 September 2022 the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in their Form or in A1’s supporting affirmation filed on the same day, but in his subsequent written submissions dated 5 January 2023, A1 referred to a judgment of the Court of Appeal under CACV 289/2021 and argues that the non-refoulement claim of his son A2 as a minor had not been properly or separately considered as to his minor-specific and personal circumstances by the Board in his previous claim or by the Director in his subsequent claim.

14.By then the Applicants were however out of time with their 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 from the date 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 3-month period for them to file their Form 86 fell on 24 August 2022, the Applicants were therefore some 3 weeks late with their 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 Applicants’ case, a delay of 3 weeks must be considered as substantial and inordinate, for which A1 was unable to offer any explanation at the hearing of their application, and as the record shows that the Director’s decision was sent on the same day to their lawyer from DLS without being returned through undelivered post, and as this is already their second such application after their previous claim and hence should be well aware of the procedural requirement, I am unable to see any good or valid reason for their serious delay.

17.As for the merits, if any, of the Applicants’ intended application, while A1 did in his written submissions correctly refer to the proper approach to minor children’s non-refoulement claims as considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, of which he argues should also apply to the claim of his son A2, but which was exactly what the Board had done in their previous claim and as confirmed by the Court of Appeal in its judgment of 22 April 2021 (see [21] of the Judgment), and that A2’s minor specific and personal circumstances since his previous claim had also been properly considered by the Director in the consideration of their request to make a subsequent claim (see [21] – [29] of the Decision). As such, and given the fact that A2, and for that matter A1 as well, did also have legal representation from DLS in his application before the Director, I do not find this complaint of the Applicants reasonably arguable for their intended challenge or any merits in their intended application.

18.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 Applicants’ request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Restricted Proceedings Order

19.Given the facts that the Applicants’ 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 4 March 2022, but that the Applicants are still trying to re-litigate their 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 them.

20.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.

…”

21.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.”

22.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.

23.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]).

24.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]).

25.In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against them, to which A1 was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicants will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

26.Accordingly, I make the following order:

(1)  The Applicants 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 Applicants do notify in writing each intended defendant or respondent of their 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 Applicants from any such intended defendant or respondent, that the Applicants do file a copy of each such response together with their 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 Applicants 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 Applicants 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 Applicants 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

27.The Applicants’ application for leave to apply for judicial review is dismissed.

28.A RPO in terms of paragraph 26 be made against the Applicants.

Dated the 26^th 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