Abid Akram v. Director of Immigration

HCAL 437/2024

[2024] HKCFI 1190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 437 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 6 February 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 238 of 2019 (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 8 April 2024. Before the Court, the applicant said the new facts he had given to the immigration are the new reasons for this application. I shall deal with this issue below.

The procedural history

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 18 March 2006. On 14 April 2007, he was arrested by the police. Thereafter on 27 April 2007, he lodged a torture claim. His torture claim was rejected and the subsequent appeal was also dismissed. He lodged a non-refoulement claim received on 15 February 2013 on the other applicable risks.[1]

5.His previous claim is based upon his fear that he would be harmed or even killed by Malik Mohammad Yousuf because of political differences and personal grudges.

6.By Notice of Decision dated 29 March 2017, the Director rejected his claim as they were not substantiated.

7.He appealed to the Board. Because of his refusal to give evidence despite warning by the Board, by the Board’s decision dated 22 November 2018 (“the Board’s Decision”). The Board dismissed his appeal and confirmed the Director’s decisions in the Notice of Decision.

8.He applied for leave for judicial review of the Board’s Decision. The Court of the First Instance dismissed his application.

9.He then failed to answer his recognizance and was arrested by police. He applied to the Court of the First Instance for extension of time to appeal against the court’s decision dismissing his application for leave for judicial review of the Board’s Decision. The court refused his application.

10.By a letter of 8 November 2023, he applied to the Director for a subsequent claim.

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

The subsequent claim application

12.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.

13.The applicant submitted a letter dated 8 November 2023 with the additional information. In gist, he is currently in fear that if he returns to Pakistan, he will be harmed or killed by Malik due to personal dispute and political reason. Besides, he is currently in fear that he will be harmed or killed by Nazaqat due to private dispute if he returns to Pakistan. He did not mention his fear of Nazaqat because he only came to know Nazaqat’s plot after 2016.

14.Having considered the additional materials submitted, the immigration officer took the view that his fear of Malik had been considered in the previous claim and rejected. The immigration officer took the view that his fear of Nazaqat is not supported by evidence that Nazaqat intended to kill or harm him. Nazaqat appeared to be venting his anger, pressing him or warning him due to the private dispute. The fact that another person under similar situation returned to Pakistan and he was kidnapped and killed by his enemy is not evidence that he will have the same fate if he returns to Pakistan.

15.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

16.The applicant has filed Form 86 dated 7 March 2024 to apply for leave for judicial review of the Director’s Decision.

17.The applicant has raised the grounds below in support of his application.

(1)  The Director has failed to recognize the threats by Nazaqat alone.

(2)  The Director was in error to hold that there is no information to suggest that Nazaqat had any intention to seriously harm him. The applicant had a dispute with Nazaqat in 2009. Nazaqat threatened him. Consequently, in 2020, Nazaqat sent his cousin with a group of people to attack the applicant. For self-defence, he had seriously wounded Nazaqat’s cousin and he was convicted of the offence. The Director had failed to recognize this 2010 event.

(3)  The applicant thought that he did not have to give details of the information because there would be an interview for his application. The Director therefore considered that he did not have evidence to support his subsequent claim.

(4)  The Director did not properly assess the internal relocation. The Director’s suggestion is unduly harsh for him.

(5)  Therefore, the Director was wrong in law and in the facts.

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. Before me, the applicant said he has new reasons in support of his subsequent claim. I shall now consider his reasons as set out in paragraph 17, supra.

20.Grounds 1, 4 and 5 are his personal opinions, unsupported by any evidence. Such personal opinions are not valid reasons to challenge the Director’s Decision.[2] Ground 2 is only his speculation. The Director had considered the 2020 event and concluded that Nazaqat did not intend to harm or kill him. This is a finding of the fact, which this Court should not interfere with. Ground 3 cannot stand because under 37ZA of the Ordinance, the applicant has a statutory obligation of making prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts.[3] As the applicant deliberately failed to disclose the full facts for the immigration in his application for subsequent claim, he has no reason to find fault with the immigration officer’s assessment of the evidence before him.

21.I agree with the immigration officer that there has not been significant change of circumstances, which taken together with the previous claim, will give a realistic prospect of success in his intended subsequent claim.

22.There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.

23.I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.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.

25.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.

26.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.

27.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 was not given enough time to explain his facts to the Director. Also, the duty lawyer advised him not to disclose the full additional information to the Director for his subsequent claim application. There is simply no reason for his duty lawyer to give such legal advice to the applicant and I reject this submission.

28.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

29.The applicant’s application is dismissed.

30.RPO in terms of paragraph 28 be made against the applicant.

Dated the 23^rd 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