Ali Malik v. Director of Immigration

HCAL 667/2023

[2023] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 667 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.

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 30 January 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2915 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 first appeared before the Court on 5 June 2023. He had agreed that his problems are the same problems raised in his previous claim. However, he had not stated why the RPO should not be imposed on him. For this purpose, the Court re-listed the case to be heard on 19 July 2023. He appeared before the court on the scheduled date.

The procedural history

4.The applicant is a national of Pakistan. He came to Hong Kong illegally from Mainland China by speedboat on 25 May 2006. On 3 February 2008, he was arrested by police for indecent assault and illegal remaining in Hong Kong. He was convicted of the offences and was sentenced to 16 months’ imprisonment. He lodged a torture claim by a written signification dated 18 July 2008, which was then assessed on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

5.His claim was rejected by the Director by a Notice of Decision dated 14 November 2014 and by a Notice of Further Decision dated 9 October 2017 on all applicable grounds.

6.He appealed to the Torture Claims Board (the “Board”). By Decision dated 7 March 2018, the Board dismissed his appeal.

7.He applied for leave for judicial review of the Board’s Decision and failed. He then pursued the matter to the appellate courts up to the Court of Final Appeal.

8.His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 10 October 2022.

9.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 28 November 2022.

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

The subsequent claim application

11.The factual basis of his previous claim is that if he is refouled, he would be harmed or killed by Mr Abbas, Mr Akram (Mr Abbas’s father) and/or his gang, (“collectively called his enemies”) because he had hit Mr Abbas with a wicket in a cricket match in 2006.

12.The Director found that his previous claim was not substantiated. He appealed to the Board.

13.Having considered his evidence, the Board found that even if the applicant’s account of fact was true, there was no evidence on which it found that there was a risk to him if he returned to Pakistan.

14.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 realist prospect of success.

15.In support of his application, the applicant had submitted his statement and copies of his recognizance, his wife’s recognizance and his daughter’s recognizance issued by the Immigration Department; his daughter’s birth certificate; his marriage certificate and the medical records of his wife. Having considered the evidence, the immigration officer concluded:

“11. … It is noted that you did not mention anything about your fear of your enemies as raised in your previous claim. As such, we take that you do not have any fresh information or update to provide regarding these previously alleged fear having been considered in your previous claim. …it is considered that the information/evidence you submitted does not constitute any significant change of circumstances warranting your making of a subsequent claim.”

16.The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

17.The applicant has filed an affirmation in support of his application, in which he did not set out any specific ground.

Discussion

18.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).

19.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that he had relied upon the same facts in his previous claim in support of his subsequent claim application and that his enemies are getting stronger. He also said that he now has a wife in Hong Kong, though she is not a Hong Kong citizen.

20.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

21.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.

22.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.

23.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.

24.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. The applicant has admitted that he relies on the same facts in his previous claim in support of his subsequent claim application.

25.I am therefore 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 the 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 her 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 Court.

(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

26.The applicant’s application is dismissed.

27.RPO in terms of paragraph 25 be made against the applicant.

Dated the 12^th day of September 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