GURVINDER SINGH v. DIRECTOR OF IMMIGRATION

CACV 49/2022

[2022] HKCA 775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 49 OF 2022

(ON APPEAL FROM HCAL NO 1460 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 30 December 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim[1]; and further made a restricted proceedings order (“RPO”) prohibiting the applicant 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, without leave of the Court of First Instance” for a period of 5 years from the date of the order.

2.  On 13 January 2022, the applicant lodged an application to DHCJ Lung by an affirmation seeking to “quash the decision of the High Court about RPO” and placed before the court a Notice of Appeal dated 10 January 2022. On 19 January 2022, the judge gave leave to the applicant to file a Notice of Appeal. He filed the Notice of Appeal on 26 January 2022 “to quash the judgment of the High Court”.

3.  The applicant is a national of India. He is 33 years old. He previously entered Hong Kong as a visitor on 22 February 2014 and was arrested for overstaying on 10 March 2014. He then made a written representation for non-refoulement protection on 20 March 2014 on the basis he would be harmed or killed if he is returned to India due to a land dispute with his family members. The Director rejected the applicant’s claims on 29 December 2015 and 27 October 2016 on all then applicable grounds including torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5]. The applicant then appealed to the Torture Claims Appeal Board (“the Board”) and it dismissed the appeal on 2 January 2018.

4.  The applicant applied for leave for judicial review on 23 January 2018 and his application was refused on 15 January 2019 by DHCJ Lung. He then applied for extension of time to appeal in the Court of Appeal and was rejected on 22 October 2019. On 16 April 2020, his application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal and on 29 June 2021 by the Appeal Committee of the Court of Final Appeal.

5.  The applicant then attempted to seek non-refoulement protection again in writing on 30 August 2021 on the same grounds as his previous claim. The Director requested further evidence and information in support from the applicant. Pursuant to sections 37 ZO (1) and (2) of the Immigration Ordinance (Cap 115), the Director considered that the subsequent claim of the applicant must provide sufficient evidence in writing to satisfy the following statutory requirements:

“(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.”

6.  The Director duly reviewed the decisions from the applicant’s previous claims and did not accept there were additional materials amounting to a significant change of circumstances from his previous claims. The Director considered that even if there was significant change of circumstances, there was no realistic prospect of success. Therefore, by a Notice of Decision on 23 September 2021, the Director refused the applicant’s request to make a subsequent claim.

7.  Pursuant to section 37ZR of the Immigration Ordinance, the Board has no power to hear any appeal from the Director’s decision in respect of subsequent claims.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 20 October 2021 to seek leave to apply for judicial review against the decision of the Director of 23 September 2021. He did not put forward specific grounds for his intended judicial review. He only stated in his supporting affirmation that the decision of the Director was unfair and unjustified because he was not given a chance to submit evidence in support of his claim. He also stated there was no screening interview and the decision was based on presumed facts which were collected and examined from unreliable sources.

The judge’s decision

9.  DHCJ Lung initially considered the leave application on paper as the applicant did not request for an oral hearing. Upon noticing that the applicant is a repeated non-refoulement claimant, the judge of his own motion called on the applicant to appear before him to show cause why the court should not make an RPO against the applicant.

10.  The judge found that the applicant’s grounds in support of his application do not assist him. He held there is no error of law or procedural unfairness in the Director’s decision and the findings of the Director are not Wednesbury unreasonable or irrational in any respect. The judge therefore dismissed the leave application on 30 December 2021.

11.  The judge went on to consider if an RPO should be made and explained to the applicant at the hearing what is entailed in an RPO. Upon being requested to show cause why such an order should not be made, the applicant said he had nothing to say.

12.  The judge is 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. The judge observed that the applicant’s non-refoulement claim had already been finally and conclusively determined in previous proceedings, ending with the order of the Appeal Committee. However, the applicant still tried to re-litigate his case by making the subsequent claim without any basis. After referring to the judgment of Chow JA (sitting as an additional judge of the Court of First Instance) in Wahyuni v Director of Immigration [2021] HKCFI 1991, the judge made the RPO against the applicant.

Grounds of appeal

13.  The applicant did not provide any grounds of substance in his Notice of Appeal. In his written submissions, he complained that he was not provided with a lawyer and sufficient time for preparation. He also stated that the Director was wrong as his previous claim was different from his subsequent claim.

14.  As the Notice of Appeal sought to “quash the judgment of the High Court” of 30 December 2021, we treat this as an appeal against the judge’s refusal to grant leave to bring judicial review against the Director’s decision of 23 September 2021 as well as the RPO.

Legal principles

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  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. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  In a decision of the Court of Appeal handed down on 28 February 2022 (Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021), the court considered the jurisdiction issue and the discretion issue concerning RPOs made by the Court of First Instance in non-refoulement proceedings. It was held that the Court of First Instance may make an RPO or RAO if the circumstances require under its inherent jurisdiction. Guidance was given on procedural safeguards and measures and the court made recommendations of appropriate wordings for an RAO and RPO at §§45 and 46:

“45. Subject to any modification or addition as may be necessary or desirable, an order restricting vexatious appeals coupled with a RAO should provide that:

‘[the litigant concerned] is prohibited from making any further application to the Court in [specifying the proceedings concerned] whether before or after judgment, and any appeal, [including this Order (if applicable)] without the leave of a Judge of the Court of First Instance.’; and

an order restricting appeals coupled with a RPO should provide that:

‘[the litigant concerned] is prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to [specifying the proceedings concerned], and any appeal, [including this Order (if applicable)] without the leave of a Judge of the Court of First Instance.’

46. In both cases, the order should go on to provide that:

‘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.’ ”

18.  The Court of Appeal also has this to say about restrictive orders in the wider context of abuse:

“53. Under the current removal policy of the Immigration Department, removal of those claimants, even with their requests for subsequent claims rejected, would be suspended because the ongoing legal proceedings constitute legal impediment against removal. Evidently, such claimants are abusing the court system in order to prolong their illegal stay in Hong Kong. Their abuse not only increases the burden on the court in handling their unmeritorious claims but also adds to the costs on our society. Public resources involved in the screening process and the litigation divert financial and human resources that would otherwise be available to meritorious non-refoulement claims and other public functions that the authorities have to perform. Their illegal stay may also pose security risk to society. This provides another powerful reason for the court to vigilantly deal with abuse of its proceedings, including the appellate process, in non-refoulement claims rejected under section 37ZO.”

Analysis and disposition

19.  The applicant has obtained leave from DHCJ Lung to file his Notice of Appeal pursuant to the RPO, so his appeal was properly brought. In future, the Court of First Instance may consider the form of wordings recommended by the Court of Appeal as mentioned above, where circumstances justify the prevention of abuse of the appellate process.

20.  The applicant’s complaints against the Director are bare allegations. In any event, he failed to adduce any evidence in support of his complaints. 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 Director. In the present case, the applicant failed to demonstrate there is any error of law or procedural unfairness or irrationality in the Director’s decision despite the bare assertions in his written submissions.

21.  The applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

22.  As for the RPO, there is no basis to impugn the judge’s exercise of discretion in making this order. The judge is plainly right that the applicant’s attempt to re-litigate his non-refoulement claim is an abuse of process to prolong his illegal stay in Hong Kong and a restrictive order should be made against him to prevent further abuse of the process of the court.

23.  For all the above reasons, the appeal is devoid of merit. We therefore dismiss this appeal.