Mir Apu v. Director of Immigration

HCAL 222/2024

[2024] HKCFI 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 222 of 2024

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 21 April 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 103 of 2017 (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 26 February 2024. Before the Court, the applicant did not agree 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 Bangladesh. Between 2001 and 2006, the applicant had multiple visits in Hong Kong and he overstayed. He had been twice removed and repatriated back to Bangladesh. In 2007, he came to Hong Kong and overstayed again.

5.By a letter of 14 October 2008, he made a torture claim under the Convention. His application was assessed together with torture risk under Part VIIC of the Ordinance, BOR 3 risk, and persecution risk. By Notice of Decision dated 31 December 2014, the Director rejected his claim on torture risk, BOR 3 risk and Persecution risk.

6.His appeal to the Board was dismissed by the Board’s Decision dated 14 March 2017 (“the Board’s Decision”).

7.The Director also rejected his claim on BOR 2 risk. He did not appeal against the Director’s decision to the Board.

8.He applied for leave for judicial review of the Board’s Decision. But he was late in making the application. The Court of the First Instance dismissed his application for extension of time on 5 March 2019. He pursued the matter all the way to the Court of Final Appeal, which dismissed his leave application on 18 November 2021.

9.By a letter of 22 December 2021, he applied to the Director for a subsequent claim.

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

The subsequent claim application

11.In his previous claim, he claimed that, if refouled, he would be harmed or killed by the people of the Bangladesh Nationalist Party (“BNP”) in Lalbagh, Dhaka because of his previous involvement with the Awami League (“AL”) and by his AL creditors because of a loan he had defaulted to repay.

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

13.The Board considered the facts of the applicant’s case and finally dismissed his appeal because the Board found that there were discrepancies in his evidence on the money borrowed and inconsistencies in his evidence given to the immigration officer and the Board. The Board found his evidence that he had lost the money by giving it to his partner in Hong Kong implausible. The Board further found that his creditors had no intention to kill him. Against such factual background, the Board found that he failed to show that he had any real fear of harm if he returned to Bangladesh.

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.The applicant submitted written signification dated 22 December 2021, 12 January 2022 and 21 February 2022 in support of his subsequent claim. The applicant had also attached 7 documents to his letter dated 21 February 2022 for the immigration officer’s consideration. In these documents, the applicant said that he would be harmed or killed by his enemies if he returned to Bangladesh. The reasons are the same as in his previous claim as summarized in paragraph 11 above. The applicant provided additional materials that his family had dispersed to live elsewhere and he is unable to have contact with them; that his brother was pisoned by his enemies and he had also moved to live in some other place; that his enemies had filed a false case against him, for which he was sentenced to 10 years’ imprisonment and the case was heard on 5 April 2008 and the sentence passed on 30 October 2008; that he had married a Hong Kong citizen for 7 years.

16.The immigration officer considered that the facts were similar in support of his previous claim as his enemies are the same enemies and the causes are the same. The immigration officer cast doubt on his allegation of the false charge against him because he did not mention it in his previous claim. He only receive the information from his friend. This is hearsay evidence, which the immigration officer did not put weight on. Furthermore, he had fled Bangladesh since November 2007. The immigration officer found it implausible for him to be charged and sentenced in 2008 as by then he had been staying in Hong Kong. Even if he was sentenced for 10 years for the false charge, he would have a fair chance to appeal to the court in Bangladesh if he returns to Bangladesh.

17.Therefore, the immigration officer 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

18.The applicant has filed Form 86 dated 25 January 2024 to apply for leave for judicial review of the Director’s Decision.

19.The applicant has raised the grounds below to challenge the Board’s Decision in his previous claim and the Director’s Decision in his subsequent claim. As this Court is only concerned with his application for leave for judicial review of the Director’s Decision, his complaints against the Board in his previous claim are irrelevant. The grounds are as follows.

(1)  the Director’s Decision is unreasonable and unfair, without taking into account his BOR 2 right;

(2)  the Director did not consider state acquiescence;

(3)  the Director failed to take into account the Country of Origin Information (COI) that support his application;

(4)  the Director did not take into consideration that the Bangladeshi government is corrupt and incompetent in its administration of the state;

(5)  the Director did failed to give enough weight to his argument before reaching his decisions; and

(6)  the Director failed to attain the high standards of fairness and meet the Wednesbury test.

Discussion

20.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).

21.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant did not agree that he relies on the same reasons in his previous claim in support of his subsequent claim application. He said that in his previous claim, the BNP was his enemies. Now he is not afraid of the BNP. The AL are his enemies because of the loans. The next new matter is the false charge, which he did not rely upon in his previous claim. He proposed to adduce further evidence for this Court’s consideration. I did not accept the additional evidence as I have no power to assess the evidence for his subsequent claim. He should have produced all the evidence to the immigration officer in charge of his case.

22.Those grounds in paragraph 19 are only general allegations without any evidence in support of them. They are not valid to challenge the Director’s Decision.

23.In the Director’s Decision, the immigration officer had taken into account of the false charge. He said that the applicant should have brought up this issue in his previous claim, which he had failed to do. The immigration officer also took the view that even if he were sentenced to 10 years’ imprisonment, he would receive fair treatment by appealing to the higher court in Bangladesh. This issue will not have any significant effect, which taken together with the previous claim, will give him realistic chance of success in his subsequent claim. I agree with the immigration officer.

24.Even taking into account the fact that in his previous claim the BNP were his enemies and now they are no longer his enemies, this issue will not affect the Director’s Decision.

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 he had nothing further to say.

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 10^th day of May 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