Rathnayaka Mudiyanselage Jagath Priyantha v. Director of Immigration

HCAL 635/2025

[2025] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 635 OF 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;    or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

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:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 3 March 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 53-year-old national of Sri Lanka who arrived in Hong Kong on 10 June 2005 as a visitor with permission to remain as such up to 15 June 2005 when he did not depart and instead overstayed, and was arrested by police some 4 years later on 9 July 2009. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the terrorist group Liberation Tigers of Tamil Eelam (“LTTE”) in revenge for having fought against them as a member of the Sri Lankan Army during the civil war.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 22 July 2015 and a Notice of Further Decision dated 14 June 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those former LTTE members upon his return to Sri Lanka as low due to the absence of any past ill-treatment from them, that the Applicant was just one of the many soldiers in the Sri Lankan Army to have fought against the LTTE during the civil war that there is no evidence or reason of him being specifically targeted for revenge other than his own speculation in the absence of any attempt ever taken against him during all those years up to the time when he left the country, that the LTTE were finally defeated by the Sri Lankan army in 2009 that all military activities against the Sri Lankan government have since ceased and that some of the LTTE leaders and members have in fact been accepted to join the government or the Parliament as politicians that it is not accepted that the Applicant will face any risk from LTTE or any of their former members upon his return to Sri Lanka, that in any event state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Sri Lanka with a large population of 21 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Colombo where it would be difficult if not impossible for any former or remaining members of the LTTE to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 7 September 2018 after hearing him in evidence and submissions made on his behalf by his lawyer, and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 17 May 2022 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 2033/2018 [2022] HKCFI 1391).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 20 September 2022 (CACV 212/2022 [2022] HKCA 1171).

8.The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 23 December 2022 ([2022] HKCA 1856), and then by the Appeal Committee of the Court of Final Appeal on 21 May 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Barely over just one month later on 27 June 2024 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he still fears that the remaining members of LTTE would take revenge against him upon his return to Sri Lanka as he believes that his eldest son who had died in a traffic accident in 2018 was in fact killed by LTTE members in revenge against him, and that in 2022 he had suffered a stroke for which he was hospitalized for 8 days in Hong Kong that he now cannot walk properly and is still under medications that he fears he will not be able to receive similar and proper medical treatments or attention in refouled to Sri Lanka.       

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, the Director by a letter dated 9 July 2024 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).     

12.By a Notice of Decision dated 3 March 2025 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, that there is no reliable evidence that his son was indeed killed by LTTE in revenge against him other than his own speculation, or that those changes as claimed when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in his previous claim as well as relevant COI of no such revenge actions taken by LTTE against any former members of the Sri Lankan army since their defeat and the end of the civil war in 2009 that it is not accepted that the Applicant will face any such risk upon his return to Sri Lanka, while COI also show that health care in Sri Lanka is both easily accessible and of good quality that it is not accepted that the Applicant will not be entitled to proper and similar medical treatments and attentions in Sri Lanka due to whatever medical issues that may arise from the stroke that he suffered some 3 years ago in Hong Kong.

13.On 13 March 2025 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event but the Director’s decision just focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant country of origin conditions and to consider that the Applicant would face serious risk from his enemies who will harm him because of his political and statistical view which was considered as a serious matter for which he would definitely be harmed upon his refoulement as his country situation has become worse that his life will be in great danger if returned to his country;

(3)  Procedural impropriety/irrationality in failing to conduct any screening interview for his new case as a victim that he may be killed or seriously harmed by his enemies but the Director did not make any inquiry of his fear as stated in his claim;

(4)  Error/misdirection of law in failing to consider his supporting documents submitted for his case in which he clearly stated his fear but the Director did not process or consider the facts;

(5)  Procedural impropriety in failing to consider his fear and the risk awaiting him in his country that he cannot relocate to other places as his enemies can easily trace him wherever he may hide in his country;

(6)  Procedural impropriety in that the Director did not assess his claim genuinely and the fact that he has raised a claim different from his previous claim supported by threatening messages received from his enemies that show his life would still be in danger upon his refoulement;

(7)  That there were no sufficient basis for the Director to conclude that he and his family would not be at risk of being subjected to torture and/or CIDTP upon refoulement and failed to consider the fact that he had raised in his claim;

(8)  That the Director failed to consider his fear that he will face if returned to his country as his enemies will kill him or hunt him that his life will be in danger if returned to his home country.             

14.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to their case, or in what way did the Director or the immigration officer err in the decision or fail to conduct the assessment of his intended subsequent claim properly or his supporting documents or that it was unfair or unreasonable, while it is entirely in the discretion of the Director or the immigration officer whether to conduct any further screening interview of the Applicant’s request to make a subsequent claim on the basis whether there was sufficient evidence in support of such claim which even on the factual basis of his own case that it is essentially the same as his previous claim, nor was there any reliable evidence of any significant change of circumstances since his previous claim was determined. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.                         

15.In the premises, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and in the absence of any reliable evidence from the Applicant or his lawyer from DLS to suggest that the Applicant was seriously ill as a result of his stroke suffered 3 years ago that on account of the absence of appropriate treatment in Sri Lanka or the lack of access to such treatment that he may be exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in his life expectancy that may satisfy the threshold test for BOR 3 Risk to be applicable, as laid down by the standard and principles established by the European Court of Human Rights in the case of Paposhvili v Belgium (2017) Imm AR 867, and adopted by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 for cases involving the removal of an alien claiming of ill-health that may amount to a violation of his or her rights under Article 3 of the European Convention on Human Rights, or BOR 3 of our HKBOR, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Restricted Proceedings Order

16.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 21 May 2024, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

17.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a)  no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)  any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless –

(a)  it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)  it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1) –

(a)  may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)  may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

18.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2)   No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

19.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.

20.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

21.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).

22.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or raise any valid objection at the hearing of his application, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

23.Accordingly, I make the following order:

(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2) All applications for leave under paragraph (1) shall be made to 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 his 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 his 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 designated Judge 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 this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7) Notice of each decision by 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 designated Judge, 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 Applicants within any period of 3 months;

(10) No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge;

(11) This order shall cease to have effect at the end of 5 years from the date of this Order; and

(12) A copy of this Order shall be sent to the Registrar of the High Court.

Disposition 

24.The Applicant’s application for leave to apply for judicial review is dismissed.

25.A RPO in terms of paragraph 23 be made against the Applicant.  

Dated the 27^th day of May 2025

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