Sukhraj Singh Dhillon v. Director of Immigration

HCAL 240/2024

[2024] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 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 3 February 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1556 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 March 2024. Before the Court, the applicant agreed that he relied upon the same facts in his previous claim to support his application.

4.The applicant applied for the case to be adjourned to another date for him to apply for legal aid. His application was refused for the reasons below:

1.  he had been staying in Hong Kong for 11 years;

2.  he had applied for legal aid for his previous claim and the Director of Legal Aid had rejected his application; and

3.  he admitted that he relied upon the same reasons in his previous claim in support of this application, therefore it is clear that there is no merit in this application.

The procedural history

5.The applicant is a national of India. He came to Hong Kong as a visitor in October 2012 and he was permitted to stay as a visitor until 3 November 2012. He overstayed and was arrested by police for overstaying and taking up unapproved employment. He was convicted of the offence of breaching condition of stay, for which he was sentenced to imprisonment for 4 weeks. He lodged a torture claim, which was taken as a non-refoulement claim together with Torture risk, BOR 3 risk and Persecution risk under the Convention.

6.By a Notice of Decision dated 28 October 2015, the Director rejected his claim. By a Notice of Further Decision dated 13 April 2017, the Director rejected his claim on BOR 2 risk. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed his appeal on all applicable risks on 27 July 2018 (“the Board’s Decision”)

7.He applied for leave for judicial review of the Board’s Decision. The Court of the First Instance dismissed his application on 18 December 2020. He pursued the matter all the way to the Court of Final Appeal, which dismissed his leave application on 30 September 2022.

8.By a letter of 7 December 2022, he applied to the Director for a subsequent claim.

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

The subsequent claim application

10.In his previous claim, he claimed that, if refouled, he would be harmed or killed by some Hindu persons as he and his friends had vandalized a Hindu temple when they were drunk.

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

12.The Board considered the facts of the applicant’s case and finally dismissed his appeal because the Board found that he had not been confronted or threatened or harmed by the Hindu persons at all, and nothing eventful had happened to him after he vandalized the Hindu temple. The state was not involved and internal relocation was a viable option for him.

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 submitted a letter dated 17 January 2023, in which he set out his reasons in support of his subsequent claim.

15.Having considered the additional materials, the immigration officer did not accept that there has been a significant change of circumstances since his previous claim was finally determined and the change, if any, when taken together with the materials previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.

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 Form 86 dated 29 January 2024 to apply for leave for judicial review of the Director’s Decision.

18.In support of his application, the applicant said that the Director’s Decision is wrong. He considers the previous claim and his application for subsequent claim are different and the Director simply did not have the intention to accept that they are different. He further complained that the Hong Kong system is totally wrong as those who needed [protection] are dismissed and those who come to Hong Kong for earning money such as the domestic helpers are allowed to stay. He believed that his materials written in his language might not have been fully translated for the immigration officer’s consideration.

Discussion

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, §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 agreed that he relies on the same reasons in his previous claim in support of his subsequent claim application. He further said that he has been living with his wife, a Filipino, for 8 years and she is now suffering from cancer.

21.Those grounds in paragraph 18 are only general allegations or comments without any evidence in support of them. They are not valid to challenge the Director’s Decision. His personal situation as he submitted in court will not advance his application.

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 further 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 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