KOLAMBAGE PRATHBHATH PURNAKA v. DIRECTOR OF IMMIGRATION

HCAL 709/2022

[2022] HKCFI 2799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 13 July 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1666 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

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 29 August 2022.

The procedural history

4.  The applicant is an illegal immigrant from Sri Lanka. On 26 October 2003, he came to Hong Kong illegally as a visitor and was permitted to stay as such. However, he overstayed and was arrested by police on 13 June 2006. He lodged non-refoulement claim on BOR 3 risk by way of written representation on 16 August 2006. His claim was then considered on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention under the Unified Screening Mechanism, effective as from 3 March 2014.

5.  His claim on Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk was rejected by the Director by a Notice of Decision dated 5 July 2017.

6.  He appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 27 July 2018 (the “Board’s Decision”), the Board dismissed his appeal on claim on all grounds.

7.  He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 6 June 2019 for being absent at the hearing (“the Court’s Order”).

8.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 15 December 2020.

9.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 18 March 2021.

10.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 16 March 2022.

11.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 24 March 2022.

12.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

13.  The factual basis of his previous claim is that if refouled, he would be harmed or killed by the underworld gangsters with political background, i.e. Kumara (“Mr. K”) and his group and the Sri Lankan government as he had attacked Mr. K for a revenge.  He further claimed that he was targeted by Mr. K and his group because of his membership in the United National Party (“UNP”).

14.  The Director found that his claim was not substantiated. He found that the evidence that the applicant had given in relation to Mr. K and his group’s threat was hearsay evidence and speculative; that the risk of him being harmed by his enemies was low as shown by the low intensity and frequency of past ill-treatments from them; that the incident was a brutal attack by the applicant on Mr. K and Mr. K would take revenge; that the state was not involved and state protection would be available to him and that internal relocation was a viable option open to him.

15.  He appealed the Director’s Decision to the Board. The Board, having considered the evidence, agreed with the Director. It further found that the applicant had exaggerated the facts of his case and his evidence had inconsistencies. The Board finds that there is no real risk or danger if he returns to Sri Lanka.

16.  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.

17.  In support of his subsequent claim, he submitted some documents and exhibits to the immigration to show that other people had been killed or become disappeared. There are news articles on the general situation of Sri Lanka. Having considered the documentary evidence, the immigration takes the view that they do not advance his case as they were the facts which he had already submitted to the Director and the Board for consideration.

18.  The Director considered that the applicant relied upon the same or similar facts of his previous claim as his enemies and the cause of the dispute are the same, which had been considered in his previous claim.

19.  The Director therefore found that the applicant relies upon the same or similar facts in support of the subsequent claim, such facts, when considered together with his previous claim, will not give him a realistic chance of success in his subsequent claim. The Director dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

20.  The applicant has filed an affirmation in support of his application. He said that his life would be in danger if he returns to Sri Lanka. His brother was injured in Sri Lanka. Before the hearing, he sent a letter to the court, in which he said that many people were murdered as emergency had started by the President. He described the government of Sri Lanka as terrorist government and he cited examples of people being killed. He also attached a photograph of his younger brother who worked in a bank and was beaten by unknown when they asked him the applicant’s whereabouts. There is also a medical report of his injured younger brother.

DISCUSSION

21.  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).

22.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had been in Hong Kong for some 19 years. He agreed that his enemies are the same enemies in his previous claim. He also agreed that the additional information was given to him by his brother in Sri Lanka.

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.

The RPO

25.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous 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. Upon my enquiry what comments on the intended RPO, he said he had nothing to say.

29.  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. 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 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 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 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 Judge.

(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

30.  The applicant’s application is dismissed.

31.  RPO in terms of paragraph 29 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