RE KHAN MD OMAR

CACV 29/2022

[2022] HKCA 884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 29 OF 2022

(ON APPEAL FROM HCAL NO 1263 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 20 October 2021[1]. In that decision, the Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“Director”)  dated 1 September 2021 refusing the applicant’s request to make a subsequent non-refoulement claim, and the Judge also made a restricted proceedings order (“RPO”)  against the applicant.

Background

2.  The applicant is an Indian national.  He previously made a non-refoulement claim in Hong Kong on 2 January 2008.  By notice of decision dated 19 January 2017, the Director assessed the applicant’s prior claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

3.  The applicant’s prior claim was based on the fear that, if he returned to India, he would be harmed or even killed by T K Sariq (also known as Sabba)  with whom he had a land dispute.  The applicant appealed to the Torture Claims Appeal Board (“Board”)  against the Director’s decision dated 19 January 2017.  On 7 August 2018 the Board dismissed the applicant’s appeal in relation to all the applicable grounds.  The Board formed an overall negative view of the applicant’s credibility and beyond the undisputed fact that the applicant was a national of India, the Board found that none of his claims could be given any credence whatsoever.

4.  On 16 August 2018 the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision (HCAL 1649/2018).  After a hearing, the Judge refused leave to apply for judicial review on 15 March 2019.[6]  The applicant then appealed to the Court of Appeal against the refusal of leave for judicial review.  The Court of Appeal heard the appeal on 15 July 2019, and on 19 July 2019 gave judgment dismissing the appeal.[7] The applicant then applied to the Court of Appeal for leave to appeal to the Court of Final Appeal; the Court of Appeal dismissed that application on 19 September 2019.[8]

5.  The applicant further applied to the Court of Final Appeal on 14 October 2019 for leave to appeal against the Court of Appeal’s dismissal of his appeal.  The Appeal Committee of the Court of Final Appeal refused leave to appeal on 7 December 2020.

6.  On 9 February 2021, the applicant wrote to the Director, requesting to make a subsequent non-refoulement claim.  The applicant provided further evidence and information in support of the request, which was received by the Director on 7 April 2021, and attended an interview with the Director on 11 August 2021.  The basis for the subsequent claim was that the applicant’s circumstances had changed significantly, in particular that Sabba and his gang went to the applicant’s (former)  home and killed his mother and beat up all his family members, in March 2020.

7.  By notice of decision dated 1 September 2021, the Director refused to permit the applicant to make a subsequent non-refoulement claim, because the Director was not satisfied that there was a significant change of circumstances that would give the intended subsequent claim a realistic prospect of success.  In particular, the Director did not accept that Sabba had killed the applicant’s mother, noting that the applicant had only allegedly learned of that incident from a telephone conversation with a friend in India, which was hearsay to which the Director was not prepared to give any weight.  The Director also had regard to the findings of fact made in the previous decisions of the Board and the Director, and noted that the claim based on threat from Sabba and his people remains unchanged and had been duly considered in the prior non-refoulement claim.

Decision of the court below

8.  On 8 September 2021, the applicant sought leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 1 September 2021.  However, in his Form 86 and supporting affirmation of the same date, the applicant did not raise any grounds for judicial review.

9.  The Court of First Instance issued a hearing notice dated 17 September 2021 to fix the hearing of the application for leave for judicial review for 27 September 2021.  In the court file, appended to the hearing notice were directions that the court would at the same hearing consider making an RPO against the applicant to prohibit him from commencing any fresh proceedings without leave of the Court of First Instance.  Those directions stated that such fresh proceedings “abuse the court’s process by seeking to re-litigate or re-open him non-refoulement claim which has already been finally and conclusively determined in HCAL 1649/2018 and appeals arising therefrom.” [sic]

10.  The directions gave the applicant a deadline of 23 September 2021 to file evidence and/or submissions to oppose any RPO which may be made.

11.  On 23 September 2021, the applicant filed an affirmation with several exhibits including a copy of his mother’s death certificate issued by the Kolkata Municipal Corporation, copies of his children’s birth certificates issued in Hong Kong, and an untranslated document in Devanagari script which the affirmation refers to as “changed story”.

12.  Following a hearing on 27 September 2021 attended by the applicant, on 20 October 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [18] – [24] of the Form CALL-1 as follows:

“ 18. The applicant has filed an affirmation in support of his application. He enclosed the Director’s Decision with his affirmation without setting out specific grounds in support of his application.

19. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant had nothing to say.

21. It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.

22. The applicant has no valid reason to challenge the Director’s Decision.

23. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  Since there is no realistic prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.”

13.  As for the RPO, the Judge’s reasons for making such an order were set out at [25] – [30] of the Form CALL-1 as follows:

“ 25. The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his original claim for a subsequent claim, which will amount to an abuse of the process. 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.

26. 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 Director 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.

27. In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

28. 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 applicant has been explained the proposed restricted proceedings order before this hearing.

29. Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that he had nothing to say.

30.  Having considered the applicant’s explanation, I am 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. …”

Appeal to this Court

14.  On 26 October 2021 the applicant requested in writing to the Judge that the RPO be withdrawn.  The Judge treated the request as an application for leave to appeal, and on 5 January 2022 granted leave for the applicant to appeal to this Court.

15.  The applicant filed his Notice of Appeal on 13 January 2022, in which he raised the following ground of appeal:

“ The High Court gave me RPO because he find there is no difference. I want to show the difference of two claim.” [sic]

16.  However, the applicant did not provide any particulars for his ground of appeal.

17.  The applicant lodged written submissions on 3 May 2022.  However, those submissions bore the title “Written Submission for Motion” and sought permission to go to the Court of Final Appeal.  In those submissions, he stated that he has a life threat in his mother land and cannot go home, that the Director and the Board rejected his claim, and that his application for leave to apply for judicial review was dismissed by the High Court and the Court of Appeal.  He submitted that he did not get justice and that there are too many errors that the Judges could not find.

18.  It appears from his written submissions that the applicant had mistakenly treated his present appeal as an application by motion for leave to appeal to the Court of Final Appeal.  At the hearing, we explained this to him, and the applicant was content that his submissions be treated as submissions in support of his appeal before us.  He did not have any substantive oral submissions to add to the written materials.

Discussion

19.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review. 

20.  As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, or identify any specific errors in the Judge’s decision or any other specific grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

21.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge’s decision, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

22.  In the present case, the Director refused the applicant’s request to make a subsequent claim for non-refoulement protection on the basis that there had been no change of circumstances to warrant allowing the applicant to make a subsequent claim, in light of the information provided by the applicant with his request and the previous decisions of the Director and the Board.  In particular, the Director did not accept that Sabba had killed the applicant’s mother, as he had only learned of that via hearsay, to which the Director accorded no weight.  Such a decision is within the province of the Director, and the court will not interfere with his assessment unless it is vitiated on public law grounds.

23.  The applicant has not identified any public law grounds that would allow the court to intervene. 

24.  On our own examination of the record, it is noted that the sealed order of 20 October 2021 did not in the recitals refer to the applicant’s 2^nd affirmation filed on 23 September 2021 (although that might have been a clerical error in the drawing up of the order)  and also noted that that affirmation (as opposed to the applicant’s 1^st affirmation of 8 September 2021)  had not been referred to at all in the Judge’s reasons in the Form CALL-1.  We have therefore some doubt as to whether the affirmation was considered by the Judge before his decision.

25.  Nevertheless, having ourselves considered the affirmation, we are satisfied that it would not have changed the outcome.  The death certificate of the applicant’s mother exhibited in the affirmation indicates that his mother died in March 2020, which is consistent with the time period of her death as stated in his request to make a subsequent non-refoulement claim.  However, there is nothing in the affirmation as to how his mother died or which would implicate Sabba or his associates in her death.  All this is subject further to the question whether on an application for leave to apply for judicial review, such evidence which was inexplicably not placed before the primary decision-maker, i.e. the Director, should be admitted as new evidence.

26.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge that part of his decision.

27.  For these reasons, the appeal against the refusal of leave to apply for judicial review, is dismissed.

28.  As for the appeal against the RPO, whether or not the circumstances of the subsequent non-refoulement claim warrant making such order, the Court of First Instance must still observe procedural fairness before making the restrictive order: Siti Khotimah v Director of Immigration, [2022] 2 HKLRD 54, [2022] HKCA 327 at [40].

29.  In the present case, the hearing on 27 September 2021 before the Judge, was notified to the applicant by way of the hearing notice dated 17 September 2021, together with directions to the applicant to file evidence and/or submissions to oppose any RPO by 23 September 2021.  Since the notice was only faxed to the Director at 2:58 pm on 17 September 2021, it is unclear whether it was posted to the applicant on 17 September or the following Monday, i.e. 20 September.  If the latter, then the applicant might not have received it until 21 or 22 September, which was undesirably close to the deadline of 23 September imposed for filing evidence and/or submissions to oppose the making of the RPO.  Nevertheless, the applicant did receive the notice and file an affirmation in response, and the hearing did not take place until another few days later on 27 September 2021 in which the applicant had a full opportunity of being heard.  In the circumstances, we do not think there was any substantive unfairness or prejudice caused to the applicant by the shortness of the notice.

30.  The applicant has also failed to make out the case in his notice of appeal, namely, that his subsequent claim is different.

Conclusion

31.  For the reasons above, the appeal is dismissed.