Re Mumtaz Yasar

CACV 38/2022, [2024] HKCA 246

On Appeal From [2021] HKCFI 3769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2022

(ON APPEAL FROM HCAL NO 1609 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 30 December 2021, by which the Deputy Judge refused to grant the applicant leave to apply for judicial review and further made a restricted proceedings order (“RPO”)  against the applicant (“the Leave Decision”)  ([2021] HKCFI 3769).

2.The intended judicial review is against the decision of the Director of Immigration (“the Director”)  dated 5 November 2021 (“the Director’s 2^nd Decision”)  refusing to allow him to make a subsequent claim.

3.On 19 January 2022, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4.The applicant is a repeated non-refoulement claimant.  He is a national of Pakistan.  He entered Hong Kong illegally on 1 February 2015.  He surrendered to the Immigration Department on 4 March 2015.  On 24 June 2015, he raised a non-refoulement claim by way of a written signification on the basis that if refouled to Pakistan, he would be harmed or killed by his three cousins or his cement supplier Aziz Ur Rehman (“Aziz”)  for his default in payment relating to the supply of cements sourced from Aziz to his cousins. He was released on recognizance on the same day.  On 7 December 2016, he was arrested by the police for several criminal offences.  On 13 January 2017, he was convicted and sentenced to 15 months’ imprisonment.  Factual details of the applicant’s claim were set out at [2] - [3] of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 11 December 2017 and at [6] of the decision of the Director dated 10 August 2017 (“the Director’s 1^st Decision”).

5.By the Director’s 1^st Decision, the Director rejected his non-refoulement claim on all applicable grounds including torture risk[1], BOR3 risk[2], persecution risk[3] and BOR2 risk[4].  The Director also did not accept that the applicant was a genuine non-refoulement protection seeker.

6.The applicant then appealed against the Director’s 1^st Decision to the Board on 22 August 2017 and attended an oral hearing on 4 December 2017.  On 11 December 2017, the Board dismissed the appeal and confirmed the Director’s 1^st Decision.  In dismissing the appeal, the Board also found the applicant’s claim to be incredible.  The applicant then sought leave to apply for judicial review under HCAL 1066/2017 which was refused by the decision of the Court of First Instance on 12 April 2019.  The applicant lodged an appeal against the decision of the Court of First Instance.  On 9 December 2019, the Court of Appeal dismissed the appeal.  The applicant’s Notice of Motion for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Appeal on 4 June 2020 and by the Court of Final Appeal on 1 June 2021.

7.On 30 July 2021, the applicant applied to the Director to make a subsequent claim upon the same facts that his enemies were still looking for him as Aziz had gone to his house and demanded payment of money and he feared that his life would be in danger if refouled to Pakistan.  He also raised the issue of COVID-19 pandemic and a lack of medical treatment or facility in Pakistan, and it was unsafe for him to return to his home country.  By a letter dated 6 August 2021, the Director requested the applicant to provide further information and evidence in writing in support of his application, which he subsequently did by a letter dated 18 August 2021 enclosing additional information.  In the said letter dated 6 August 2021, the Director also duly informed the applicant of his right to seek legal representation and the availability of publicly funded legal assistance provided by the Duty Lawyer Service.

8.By the Director’s 2^nd Decision, the Director refused to allow the applicant to make a subsequent claim.  The Director considered that the applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim determined.  The Director also considered that there was no evidence other than bare assertion or hearsay information to show that Aziz had looked or would be looking for him and would harm or even kill him upon his return to Pakistan. The Director further considered that even if assuming that there had been a significant change of circumstances, such change when taken together with the materials previously submitted in support of his previous claim would not give his subsequent claim any realistic prospect of success given the unchallenged findings in his previous claim by both the Director and the Board of the availability of both state protection and internal relocation if he was to return to Pakistan.  On the issue of COVID-19 pandemic, the Director did not accept that the existence of the pandemic disease would give his subsequent claim any realistic prospect of success.

The Leave Decision

9.On 24 November 2021, the applicant applied for leave to apply for judicial review against the Director’s 2^nd Decision and commenced the proceedings under HCAL 1609/2021.  No ground of review was provided by the applicant in his Form 86 or supporting affirmation.  On 8 December 2021, the applicant attended an oral hearing before the Deputy Judge and an Urbu/Punjabi interpreter was present to provide language assistance.

10.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review against the Director’s 2^nd Decision.  His reasons were set out at [19] - [24] of the Leave Decision:

“19. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he wanted to adjourn the hearing because he wanted to get a lawyer and obtain evidence. His application was rejected because he was unable to explain why he did not do so before the hearing.

21. It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.

22. The applicant has no valid reason to challenge the Director’s Decision.

23. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  Since 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 2^nd Decision].”

11.The Deputy Judge went on to consider if an RPO should be made.  Upon being requested to show cause why such an order should not be made, the applicant said that he had nothing to say.

12.Having considered the applicant’s explanation, the Deputy Judge was satisfied that if not restrained, it was likely that the applicant would proceed with his application and other proceedings for the sole purpose of remaining in Hong Kong.  The Deputy Judge also observed that the applicant’s non-refoulement claim had already been conclusively determined in previous proceedings, and the applicant was still attempting to re-litigate the facts in support of his original claim in his subsequent claim application.  The Deputy Judge found that the applicant’s conduct amounted to an abuse of process.

13.Accordingly, the Deputy Judge made the following RPO against the applicant at [30] of the Leave Decision:

“(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 Court of First Instance, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1)  shall be made to Deputy 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.

…

(10)  This order shall cease to have effect at the end of 5 years from the date of this order.

…”

The Appeal

14.On 19 January 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT FIND ANY ERROR OF ADJUDICATOR’S DECISION. I WANT TO SHOW SOME ERROR.” (sic)

15.Pursuant to the directions made by the Registrar of Civil Appeals on 18 March 2022, the applicant lodged his written submissions on 10 May 2022.  In those submissions, he stated that he gained popular support from poor and village people, but his enemy threatening his life in his home country was powered by the state police who took money from his enemy every month.  He contended that the High Court failed to find any error in the decision that dismissed his claim, but without giving any particulars.  He complained that the adjudicator did not give him time.  He also complained that he was not provided with legal representation and was not given a good interpreter.  There is no appeal or submission against the RPO.

Discussion

16.The relevant legal principles governing appeals in non-refoulement cases are set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

18.In our view, the applicant’s appeal is doomed to fail.  In the present case, the applicant’s request to make a subsequent claim was filed to the Director about one month after the Court of Final Appeal refused to grant him the leave to appeal in his previous application.  Despite a previous unsuccessful application conclusively determined by the Court of Final Appeal, the applicant attempted to re-litigate his case by bringing a second application for leave to judicial review based on essentially the same facts and basis.  This amounts to an abuse of process and the Deputy Judge rightly dismissed the applicant’s second leave application: Bepary Shahealom, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].

19.In any event, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence.  Nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  Accordingly, his submissions are plainly not proper grounds of appeal.  On this basis alone, his appeal must also fail.

20.Insofar as his allegation about his enemy’s association with the state police, this is a factual matter (even if true, on which we express no views)  that was not been advanced before the Deputy Judge.  This is not permissible now to be run in the appeal: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

21.All his other allegations are also wholly without merit.  It is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  It is also trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he may desire: Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  It is noted from the Director’s 2^nd Decision that the applicant was already given time to provide further information and evidence in support of his subsequent claim, and was duly informed of his right to seek legal representation and the availability of the Duty Lawyer Service.  As earlier mentioned, the applicant attended the hearing before the Deputy Judge with the assistance of an Urdu/Punjabi interpreter.  The applicant never raised any complaint before the Deputy Judge in relation to the quality of the interpretation services provided during the hearing.  Further, even until now, the applicant failed to provide any good reason why he would need more time for his case.  His bare request for more time is without basis and must be rejected.

22.As also earlier mentioned, the applicant has not sought to challenge the RPO in his Notice of Appeal.  In any event, even if the applicant has done so, we are satisfied that the RPO by the Deputy Judge was correctly made, and there is no proper ground to challenge the RPO.

23.Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant acting in person