BEYDOU MAGAGI SEYBOU v. DIRECTOR OF IMMIGRATION

HCAL 207/2025

[2025] HKCFI 884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 207 OF 2025

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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 15 November 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 2318 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 24 February 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, is a national of Nigeria. He came to Hong Kong on 2 February 2013 as a visitor. However, he overstayed since 17 February 2013. He lodged a non-refoulelment claim on the basis that, upon refouled, he would be killed by his father because he had married to 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”). He did not attend the hearing of the Board, which assessed his appeal on the papers and dismissed it. His appeal against the Director on the BOR 2 claim was late and the Board refused to extend time for filing his notice of appeal.

6.  His application for leave for judicial review of the Board’s Decision on his BOR 2 claim was refused by the Court of the First Instance on 29 February 2024.

7.  By an undated letter and received by the Immigration Department on 7 October 2024, 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.  Upon the immigration officer’s advice, he had submitted additional materials in support of his application.

10.  The immigration officer considered his evidence and found that the applicant relied on the similar reasons in his previous claim. His claim was therefore treated as a continuation of his previous claim.

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 16 January 2025 for judicial review of the Director’s Decision.

13.  In the affirmation in support of his application, the applicant has raised the following reasons to challenge the Director’s Decision:

(1)  Error of law: failing to consider the persecution risk; concluding that he would face a lesser persecution risk upon his return to his country; wrongly concluding that he would have state protection and relocation would be viable as his family and Islamic community harbor animosity against him; and the immigration officer misdirected himself to conclude that there will be low risk if he returns to Niger;

(2)  Failure to apply high standards of fairness: the immigration officer failed to take into consideration of his human right;

(3)  The immigration officer said in the Director’s Decision that state protection would be available and internal relocation would be viable without stating the reasons why he could say so. The immigration officer did not consider the true facts of the situation in Niger and at all levels of the government, there are brutality, corruption and human right abuses.

(4)  The immigration officer’s findings of the facts above are unreasonable and irrational and even illegal.

(5)  The immigration officer’s finding of the facts above is contrary to the evidence and are unreasonable and unfair.

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 on the same facts in his previous claim for the subsequent claim.

16.  As to the reasons raised under paragraph 13, most of them are bare assertions and his personal views without any evidence in support. The immigration officer has given reasons on state protection and internal relocation. He referred to the Director’s Notice of Decision dated 8 June 2016 (“Director’s Decision in the previous claim”) in respect of his previous claim. In the footnotes of the Director’s Decision, the immigration officer referred to paragraph 22 of the Director’s Decision in the previous claim, which set out the country of origin information (“COI”) in relation to state protection in Niger. In this paragraph, the immigration officer referred to the pros and cons of state protection and came to the conclusion that the applicant would obtain state protection upon his return to Niger.

17.  The footnotes in the Director’s Decision referred to paragraph 23 of the Director’s Decision in the previous claim also referred to the COI in relation to internal relocation in Niger, which applied the same approach as for state protection and came to the conclusion that internal relocation will be viable if the applicant returns to Niger.

18.  The arguments put forth by the applicant in relation to state protection and internal relocation are his opinions without any evidence in support against the COI. They are not valid to challenge the COI.

19.  There is no valid reason to challenge the Director’s Decision.

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

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

The RPO

22.  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.

23.  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.

24.  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 had nothing to say.

25.  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

26.  The applicant’s application is dismissed.

27.  RPO in terms of paragraph 25 be made against the applicant.