NAMBUKARA TANTRILAGA DON ASIRI CHARIT JAYASURIYA v. DIRECTOR OF IMMIGRATION

HCAL 1746/2021

[2022] HKCFI 2770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1746 of 2021

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 counsel for the Applicant in open court;

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 4 November 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim 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 35-year-old national of Sri Lanka who arrived in Hong Kong on 24 September 2005 as a visitor with permission to remain until 26 September 2005 when he did not depart and instead overstayed, and was arrested by police more than 3 years later on 18 March 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim which he later withdrawn, and then subsequently sought non-refoulement protection on the basis that if he returned to Sri Lanka he would be harmed or killed by the Sri Lankan government and authorities for failing to attend a court hearing and for making complaints and protests against the Sri Lankan government over the disappearance of his father years ago in 1988 while as a member of the opposition political party Janatha Vimukthi Peramuna (“JVP”).

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 29 January 2016 and Notice of Further Decision dated 7 June 2017 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that his perceived fear of harm form the Sri Lankan authorities as real and foreseeable upon his return to Sri Lanka as there was no reliable evidence that he had indeed been pursued by the police or authorities or charged for any offence or required to attend any court hearing or over any complaints or protests which he might have made against the government or over the disappearance of his father occurred many years ago when he was only an infant and that he was able to leave the country without any problem, and that reliable and objective Country of Origin Information (“COI”) show that the Sri Lankan government have since the 1980s taken remedial measures to deal with the disappearances of its citizens during the previous insurgency including paying compensations to their families, and that JVP had since the 1990s been able to participate in democratic elections as one of Sri Lanka’s legitimate political parties and that there is now a fair and proper judicial system and due process available in Sri Lanka that if the Applicant were indeed wanted by the authorities for any proper criminal investigation that there is no suggestion that he would be denied the due process or legal representation to properly defend any such charges that it was not accepted that he would face any real or substantial risk of being harmed or subject to any ill-treatment by the police or the authorities that his claim for non-refoulement protection failed on all the applicable grounds.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 20 July 2017 after hearing him in evidence and submissions and upon accepting that his father had indeed been politically active in his involvement in JVP, and that he had disappeared in 1988 when the Applicant was only an infant, but doubted his claim of being pursued by the Sri Lankan authorities for any reasons, that based on relevant COI that it was not accepted that the present Sri Lankan government would have any adverse interest in him over the disappearance of his father years ago or his complaints thereof to the former regime that it concluded that there was no merits in his claim or his 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 13 June 2019 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 563/2017 [2019] HKCFI 1500).

7.  The Applicant’s appeal against the Court’s decision was dismissed by the Court of Appeal on 8 October 2019 (CACV 282/2019 [2019] HKCA 1134) upon finding that there was no error of law or mistake of fact or procedural impropriety in either decision of the Board or the Court or any basis to disturb the Court’s decision (see [22] of the Reasons for Judgment dated 11 October 2019).

8.  The Applicant’s subsequent notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 7 July 2020 ([2020] HKCA 513), and then by the Appeal Committee of the Court of Final Appeal on 5 August 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Less than 2 weeks later on 16 August 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he has further evidence to prove that his father had indeed disappeared and/or murdered by the then Sri Lankan authorities and therefore he still fears that he as the son will also be harmed or killed by the present Sri Lankan government if 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, by letters dated 26 August 2021 and 10 September 2021 the Director required the Applicant to provide further information and evidence in writing in support of his request, for which the Applicant through his present lawyers by a letter dated 24 September 2021 requested for further time of “3 to 4 weeks” to do so, to which the Director agreed and extended the time for him to do so up to 22 October 2021, but eventually no further evidence or information were submitted by the Applicant or his lawyer in support of his request.

12.  By a Notice of Decision dated 4 November 2021 the 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, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

13.  On 23 December 2021 the Applicant through his lawyers filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forth the following grounds for his intended challenge:

(1)  That the Director made the decision in the absence of relevant material that he had been told was forthcoming;

(2)  That the Director relied on the findings of the Board without making his own assessment of the evidence and information submitted by the Applicant in support of his request to make a subsequent claim;

(3)  That the new material which the Applicant has since obtained and now exhibited to his supporting affirmation support his claim that he has substantial grounds to fear CIDTP if refouled to Sri Lanka;

(4)  That the new material demonstrates that the finding by the Director that the Applicant’s evidence was not credible is unfounded as it corroborates his request to make a subsequent claim.

14.  The first two grounds or complaints can be disposed of fairly quickly as entirely without merits, as the Director clearly did accede to the Applicant’s request for further time up to 22 October 2021 to submit his evidence but which he eventually never did, nor did he request again for further time to do so, hence there is simply no basis or merits in the Applicant’s complain of any procedural unfairness on the part of the Director, as the Applicant indeed had had ample time to obtain such evidence before as pointed out by the Director in paragraph 10 of his decision, in which the Director and also in the following paragraphs 11 and 12 did make his own and detailed assessment of the Applicant’s request on the basis of the evidence and material available before him including those then submitted by the Applicant, of which Mr Neil Thomson who appeared for the Applicant at the hearing did not identify any error of law or mistake of facts committed on the part of the Director when he mainly focused on the new evidence which the Applicant now claims to have obtained since the Director’s decision, and which Mr Thomson submits should be admitted as evidence by this Court and to be considered by the Director, for the reasons under Grounds (3) and (4) which I now propose to consider together.

15.  As noted above, the Applicant in his 2^nd affirmation of 21 December 2021 exhibited a letter dated 20 November 2021 which he claimed to have received on 29 November 2021 from “Lawyers for Human Rights”, a NGO in Sri Lanka that assists and conducts inquiries for persons suffering from infringement of their human rights, as he so stated in his affirmation:

“2. … I had asked this organization to carry out an investigation into the disappearance of my father in 1989 and contemporary fraudulent transactions in property depriving him of ownership.

3. Further I requested them to consider the risks I might face on return to Sri Lanka based on their experience of human rights infringements and abuses in Sri Lanka.

4. Prior to receiving this letter, I had informed the Immigration Department that I was making progress in investigating these matters and expected that the decision would be delayed until the new information was received as this would have a major impact on the credibility of my claims and assessment of the risk I would face on refoulement to Sri Lanka.”

16.  Firstly, it is not for this Court in a judicial review to consider or assess this document as new evidence which had never been produced before the Director or in the Applicant’s previous claim before the Director or the Board, as the consideration of all available evidence together with other information including COI materials as well as the assessment of risk of harm, state protection and viability of internal relocation are primarily within the province of the Director in the present case for subsequent claim, as Lam VP (as he then was) in Nupur Mst v Director of Immigration [2018] HKCA 524 in giving the judgment of the Court highlighted the general propositions at [14]:

“(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse the decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 …

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 451; and Re Muhammad Usman [2018] HKCA 474.

17.  While it is generally accepted in applications of this nature that the Court may relax the rule in Ladd v Marshall limiting the circumstances under which fresh evidence can be admitted: see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, there is however serious issue as to the authenticity of this document which Mr Thomson at the hearing readily conceded of never having been properly authenticated by notarization by the relevant authority in Sri Lanka for it to be properly admitted as evidence, when even a causal glance of its contents show numerous grammatical errors as well as the convoluted and amateurish manners in which it was supposedly written by three attorneys-at-law that such serious issue as to the authenticity of the document simply cannot be ignored.

18.  More relevantly, even if the document were indeed genuine, it reveals that those lawyers were instructed by the Applicant back in 2008, when he was then already overstaying in Hong Kong but not yet raised any non-refoulement claim, to investigate certain property dealings allegedly made by his father around the time of his disappearance in Sri Lanka, but the document somehow came to the conclusion that the Applicant should be allowed to seek non-refoulement protection in Hong Kong as it would be dangerous for him to return to Sri Lanka without putting forth any legal or factual bases for arriving at a conclusion, nor for that matter did it produce or even refer to any evidence which it claims to have regarding the alleged abduction and murder of the Applicant’s father by the then Sri Lankan government, which was supposed to be the whole purpose behind the Applicant’s request to make a subsequent claim that he would face the same risk of harm as his father from the Sri Lanka government if he is to be refouled to his home country.

19.  Above all, again even if the document were genuine and did in fact reveal undisputed evidence that the Applicant’s father had indeed been abducted and murdered by the then Sri Lankan government back in 1988 or 1989 for political reasons when the Applicant was then only an infant, it would not in my judgment assist or advance his case any further for his present application, as noted above that it had already been so found and determined by the Board in the Applicant’s previous claim, a decision in which neither this Court nor the Court of Appeal had found any error of law or mistake of facts as to such findings, and as the Board in fact never took any issue with such claim of the Applicant when it stated in its decision at [90]:

“I accept that the Claimant’s father had been politically active and had lent financial support to the JVP’s action. I accept that the Claimant’s father had disappeared in about 1989 when the Claimant was about two years old. I accept that the Claimant’s mother had made a report to the police about the disappearance of the Claimant’s father shortly afterwards. Nothing untoward happened to her or her family after that. I also accept that the Claimant’s mother had taken the Claimant and his two elder sisters to live with the Claimant’s maternal grandfather … I accept that in about 1991, the Claimant’s mother had gone abroad to work in Singapore for two years and then she returned to Sri Lanka to reunite with her children.”

20.  In the Director’s decision refusing the Applicant’s request to make a subsequent claim, it is also clear that there was never any such issue taken by the Director when he upon fully and accurately summarizing all the evidence then put forward by the Applicant and his lawyer in writing proceeded to note in his decision at [10]:

“ … In the Previous Claim and the appeal at the TCAB, the disappearance of your father was not the major factor in determining your claimed future risk if you are returned back to Sri Lanka. Even if we assumed the disappearance of your father was due to the political reason or done by some of the government officials. There is no indication that you would experience the same risk if you were returned to your country, it is your own speculation that you would face the same life risk or adverse experience if you were returned back to Sri Lanka. As such, even if you were submitted the claimed information or documents do not advance your Request any further …”

21.  Hence there had never been any issue as to the credibility of the Applicant’s claim over his father’s disappearance due to his political activities in 1989 either in his previous claim or in his present application before the Director, and that this document which the Applicant now argues would go to support his request to make a subsequent claim if admitted would not in my judgment assist or advance his case at all, as it would not, and could not, amount to any significant change of his circumstances since his previous claim was finally determined, nor would such change when taken together with the material previously submitted in support of his previous claim give his subsequent claim a realistic prospect of success as required under Section 37ZO (2) of the Ordinance.

22.  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 for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse his leave application.

Restricted Proceedings Order

23.  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 5 August 2021, 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, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

24.  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.

…”

25.  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.”

26.  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.

27.  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]).

28.  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]).

29.  In the present case, and for the reasons given, I do not agree with Mr Thomson that there was any merit in the Applicant’s request to make a subsequent claim not to warrant the making of a RPO against him, as it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds and his attempts to admit wholly unauthenticated and irrelevant evidence amount to an abuse of process, and that unless a RPO is made against him, he will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

30.  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 Applicant 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

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

32.  A RPO in terms of paragraph 30 be made against the Applicant.

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