Sanjaya Kumar Magar v. Director of Immigration

HCAL 1549/2023

[2024] HKCFI 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1549 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 KW 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 22 August 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2819 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 4 October 2023.  Before the Court, the applicant admitted that he relied upon the same facts in his previous claim to support his application.

The procedural history

4.The applicant is a national of Nepal.  He came to Hong Kong illegally on 12 February 2007 and surrendered to police on 11 August 2008.  On 21 October 2008, he lodged his non-refoulement claim with the Immigration Department on the grounds of Torture risk under Part VII C of the Ordinance, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently also on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance,

5.His claim was rejected by the Director by a Notice of Decision dated 12 June 2014 and Notice of Further Decision dated 24 February 2017.

6.He appealed to the Torture Claims Board (the “Board”).  By Decision dated 13 August 2015 and Decision dated 30 November 2018 of the Board, the Board dismissed his appeal.

7.He applied for leave for judicial review of the Board’s Decision in the High Court.  The Court of the First Instance dismissed his application by its decision dated 3 June 2021.  He pursued the matter in the High Court and further to the Court of Final Appeal.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 5 May 2023.

8.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 16 May 2023.

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

The subsequent claim application

10.The factual basis of his previous claim is that if refouled, he would be harmed or killed by Maoists for refusing to join them, or by the Nepal Army for having deserted them.

11.The Director found that his previous claim was not substantiated and rejected his application.  He appealed the Director’s Decisions to the Board. 

12.The Board considered the facts of the applicant’s case and finally dismissed his appeal for the reasons that is evidence was “wholly unreliable” principally because of the inconsistencies between the statements in his claim forms, the answers he gave at the interview with the immigration officer and his evidence to the Board.  The Board further found that he had never suffered any pain or suffering from the alleged sources and that he was not targeted by the Nepalese government.  The Board also found that internal relocation was viable and that reasonable state protection was available.  In the result, the Board concluded that there was no real risk of harm to him in the event of refoulement and dismissed his appeal.

13.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.

14.The applicant has submitted a statement of additional information to the immigration officer in support of his application.  In his additional information and the 2 letters, the applicant reiterated that he was in fear of his enemies as stated in his previous claim.

15.The immigration officer therefore 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

16.The applicant has filed Form 86 dated 4 September 2023 to apply for leave for judicial review of the Director’s Decision.

17.The applicant has raised the issues that the Director was unfair and unreasonable in reaching his decisions because he had set the threshold of realistic prospect of success too high and he was biased.  The applicant further submitted that he was not provided with legal assistance; that he was not given assistance on language and legal matters; that the Director should view his application at different perspectives, that there was no screening for his application; that there would not be justice in Nepal in its judicial system; that the Director did not take into consideration of his new circumstances and that there was no appeal to the Board.

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.

20.Before me, the applicant admitted that he had relied upon the same reasons in his previous claim in support of his subsequent claim application.

21.In view of his admission before the Court, those reasons he had raised and set out in paragraph 17 are irrelevant.  His application is an abuse of the legal proceedings and is simply not allowed by the law.

22.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

23.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.

24.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.

25.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.

26.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 he had nothing to say.

27.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

28.The applicant’s application is dismissed.

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

Dated the 16^th day of January 2024

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