Shah Zahid v. Director of Immigration

HCAL 2267/2024

[2025] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2267 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 31 July 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 137 of 2019 (“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 13 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 33, is a national of Pakistan. He entered Hong Kong illegally and was arrested by police on 20 February 2016. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his fellow villagers and also member of Taliban because they suspected he had converted to Christianity as he was seen near a church together with his friend who was a Christian.

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 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 25 October 2023.

7.By letter dated 15 December 2023, 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, web materials showing that the ruling party was having mass arrests of the demonstrators and killing of the Jel leaders. 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. As to his assertions of false charge against him and the death of his friend, the immigration officer stated in the Director’s Decision:

“12. … … Therefore, your bare assertion, in the absence of supporting information, that the false charge against you should put your life at the risk and the death of your friend do not constitute a significant change of circumstances which would give the intended subsequent claim a realistic prospect of success when taken together with the material previously submitted in support of you previous claim. …”

10.The immigration officer also found that state protection would be available and internal relocation would be viable.

11.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

12.The applicant filed Form 86 on 26 November 2024 for judicial review of the Director’s Decision.

13.The applicant has submitted a statement, in which he said that his enemies are still looking for him. He had 3 children in Hong Kong. If he is deported, his children’s future will be uncertain. His wife is recuperating from giving birth to the child. He is now suffering from mental stress because of this application.

Discussion

14.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).

15.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 he relied upon the same reasons of his previous claim. He further said that his father had come to Hong Kong to tell him that his enemies are still looking for him.

16.The grounds that he has raised in paragraph 13 will not assist him because they are not the valid grounds under the law or the Convention. They are, at most, compassionate grounds, which are matters for the Director. He has already decided to reject the applicant’s subsequent claim.

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

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

The RPO

19.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.

20.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.

21.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 understood.

22.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

23.The applicant’s application is dismissed.

24.RPO in terms of paragraph 22 be made against the applicant.

The applicant appeared in person.