Ogbozor Tochukwu Eugene v. Director of Immigration

HCAL 2316/2024

[2025] HKCFI 288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2316 OF 2024

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J U D G M E N T

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THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 30 August 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 1436 of 2018 (“the previous application”).

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 6 January 2025 and admitted that he had made judicial review in respect of the Board’s Decision in the previous claim and this is the second application on the same facts and grounds.

The procedural history

4.The applicant, aged 43, is a national of Nigerian. He came to Hong Kong as a visitor on 21 January 2008. He left Hong Kong for China and returned to Hong Kong on the same day in the same status as a visitor. He overstayed and was arrested by police on 29 July 2014. He was referred to the Immigration Department. On 4 September 2014, he lodged his non-refoulement claim with the Immigration Department. He claimed that if refouled, he would be harmed or killed by the people from the Niger Delta Group.

5.The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that his evidence was incredible and dismissed his appeal.

6.His application for leave for judicial review of the Board’s Decision was out of time and he applied for extension of time. His application was dismissed by the Court of the First Instance on 23 November 2021. He applied for extension of time to appeal against the Court of the First Instance’s decision. The Court of the First Instance refused his application. His appeal to the Court of Appeal was dismissed by the Court of Appeal. He filed a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismiss his Notice of Motion. He applied to the Court of Final Appeal for leave to appeal and his application was dismissed by the Court of Final Appeal on 8 April 2024.

7.By letter dated 24 April 2024, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.

The subsequent claim application

8.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 realistic prospect of success.

9.In support of his subsequent claim, the applicant submitted to the immigration officer supplementary materials such as his statement, newspaper cuttings and articles relating to mass kidnappings in Nigeria. He further submitted that his friend in Nigeria had called him over the phone and told him that the Niger Delta Group people are still asking for his whereabouts. He relies on the fact that Nigeria is unstable, with a lot of different threats from Boko Haram, kidnapping, banditry, insurgency, Fulani Herdsman and the Muslims targets Christians in his country.

10.Having considered the additional materials, the immigration officer found that the additional materials were those in his previous claim or not proved to be authentic. The immigration officer remarked:

“15. … …it appears that they do not contain information material to your specific case showing that you will be personally at risk, …There is nothing in the context of the aforesaid Documents to show or support that you will face a foreseeable, real and personal risk of serious harm or ill-treatment if returning to Nigeria. Besides, you did not have any prior personal encounter with people from the Niger Delta Group. It is merely your own speculation that you would be targeted if you were sent back to Nigeria. Thus, it is assessed that the Documents cannot advance your Request any further and it is not accepted that your fear arising from unsatisfactory security situation in Nigeria constitute a significant change of circumstances which would give the subsequent claims a realistic prospect of success.”

11.The immigration officer had also considered that he had married in Hong Kong. But he considered that this issue would not affect his request.

12.For those reasons, the immigration officer was not satisfied with the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application for subsequent claim.

Application for leave to apply for judicial review of the Director’s Decision

13.The applicant filed Form 86 on 29 November 2024 for judicial review of the Director’s Decision.

14.The applicant has, in his affidavit, exhibited articles on mass kidnapping situations in Nigeria, and submitted that the exhibits show that he would be subjected to his right of absolute and non-derogatory rights under section 8 of the Hong Kong Bill of Rights Ordinance being violated upon his return to his country. He further submitted that the immigration officer had not taken into account of the imminent risk and the collapse of state protection in Nigeria. Further, he said the immigration officer had not taken into consideration that his mother was killed by the kidnappers because of him, and if he returns to Nigeria, he will be harmed or killed by those people too.

Discussion

15.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).

16.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that his enemies were the same as those in his previous claim. But he further said that he now has a family and his is looking after his step-son.

17.As to the grounds set out in paragraph 14, the immigration officer had considered those materials and made his findings on them. He rejected those materials will support his application because the issue of his mother being killed by the kidnappers had been considered in his previous claim and rejected. That he is being sought by his enemies in Nigeria is only hearsay evidence given to him by his friend in Nigeria and it is only his speculation that he will be targeted by his enemies. The general situation in Nigeria is not sufficient evidence to show that he will be subjected to such situation personally if he returns to Nigeria. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be “personally at risk.”

18.The hearsay evidence given to him by his friend was rejected. There is no valid reason that the Court should intervene with the finding of the facts by the immigration officer. The immigration officer had considered that he now has a family in Hong Kong. But this will not advance his application. The immigration officer is right. In Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, CJ Ma, Mr Justice Ribeiro PF, Mr Justice Fok PJ, Mr Justice Stock NPJ and Mr Justice French NPJ, 4 April 2019, the Court of Final Appeal held:

“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”

19.The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.

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

The RPO

21.Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. 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.

22.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.

23.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. When asked whether he had anything to say about the proposed RPO, he said he had nothing to say.

24.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

25.The applicant’s application is dismissed.

26.RPO in terms of paragraph 24 be made against the applicant.

The applicant appeared in person.