Vithana Pathirannehelage Warunapriya Lakmal Jayaratna v. Director of Immigration

HCAL 1386 of 2023

[2023] HKCFI 2604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1386 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 9 June 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2269 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 11 September 2023. Before the Court, the applicant admitted that he relied upon the same facts in his previous claim to support his application because the enemies are the same enemies.

4.At the hearing, the applicant produced a pink card, which showed that he had applied for legal aid and the result had yet been obtained. He had also produced a statement in support of his application.

5.Having considered the matters above, I held that the proceedings should not be stayed under section 15(4) of the Legal Aid Ordinance, Cap. 91 because there is no merit in the applicant’s application as the applicant has admitted that he relies upon the same facts in his previous claim for his subsequent claim application.[1]

6.After the hearing, the applicant, by a letter dated 12 September 2023, applied for another hearing because he considered that the court interpreter at the hearing was not good and had made wrong interpretation. He asked for another hearing with a good interpreter who can help present his case effectively.

7.Having considered the applicant’s letter, I refuse his application for the reasons below:

(1)  The applicant is not qualified to challenge the court interpreter, who has undergone the test to qualify as a court interpreter for the language.

(2)  If the court interpreter was not interpreting what he said before the Court, the applicant should have raised it immediately so that the Court might clarify with the court interpreter there and then. The applicant did not raise this issue at the hearing. The Court did not find the interpretation by the court interpreter unclear or misconceived.

(3)  To call for another hearing with another court interpreter under the present circumstances is unfair to the court interpreter and a waste time and costs unnecessarily.

(4)  There is no basis for the applicant to raise this issue at this stage.

8.The Court therefore proceeds to assess the applicant’s application.

The procedural history

9.The applicant is a national of Sri Lanka. He entered Hong Kong illegally on 28 December 2008. On 6 January 2009, he was arrested by the police for illegal remaining. On the same date, he raised a torture claim which was rejected on 19 September 2012. The subsequent petition of the refusal was dismissed on 25 October 2012. On 25 March 2014, he lodged a non-refoulement claim on the grounds of BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

10.His claim was rejected by the Director by a Notice of Decision dated 24 January 2017.

11.He appealed to the Torture Claims Board (the “Board”). By Decision dated 11 October 2018, the Board dismissed his appeal.

12.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 Appeal. By order dated 19 December 2022, the Court of Appeal dismissed his appeal.

13.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 7 March 2023.

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

The subsequent claim application

15.The factual basis of his previous claim is that if he is refouled, he would be harmed or killed by the military or the intelligence operators who supported the ex-president Mahinda Rajapaksa (“MR”).

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

17.Having considered his evidence on the papers without a hearing, the Board, by the Board’s Decision, dismissed his appeal for the reasons that the applicant was unable to dispel the inconsistencies of his evidence with explanations and he was unable to establish that he would be subjected to real risks as claimed if he returns to Sri Lanka.

18.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.

19.In support of his application, the applicant had submitted to the immigration officer a police report, a copy of a birth certificate of Pamitha Benul @ Pamitha Binul and a copy of an agreement related to custody of a child prepared by a firm of solicitors.

20.Having considered the materials, the immigration officer considered that the reasons put forward together with the additional information supplied did not accept that there had been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

21.The applicant has raised in his affirmation in support of his application that the Director was wrong in his decisions. There is no particular in his submission.

Discussion

22.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).

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

24.Before me, the applicant admitted that he had relied upon the same reasons in his previous claim in support of his subsequent claim application. In view of his admission before me, I consider that it is unnecessary to consider those reasons under paragraph 21.

25.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

26.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.

27.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 Direcctor 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.

28.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.

29.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 RPO was explained to the applicant before the hearing. The applicant said that he did not tell the immigration officer that he had 15 documents and CCTV to show that his enemies are still looking for him in Sri Lanka. These are irrelevant because of the applicant’s admission of the fact in support of his application.

30.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

31.The applicant’s application is dismissed.

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

Dated the 24^th day of October 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