GOLE SURYA v. DIRECTOR OF IMMIGRATION

HCAL 1155/2021

[2021] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1155 of 2021

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 Applicant being present 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.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration.

2.  This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 23 July 2021 (“the Director’s Decision”) refusing his application for a subsequent claim of HCAL 7 of 2018 (the ‘original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

3.  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.

The procedural history

4.  The applicant is an illegal immigrant from Nepal. He raised non-refoulement claim with the Immigration Department on 23 May 2014 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance.

5.  His claim was rejected by the Director by Notice of Decision dated 15 March 2016 and Notice of Further Decision dated 22 June 2017.

6.  He appealed to the Torture Claim Appeal Board (the “Board”). By its Decision dated 15 December 2017, the Board rejected his appeal.

7.  He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 28 September 2018.

8.  He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed by the Court of Appeal on 6 June 2019.

9.  He applied by notice of motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 29 August 2019.

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 15 October 2020.

11.  He applied to the Director for subsequent claim by letter 22 October 2020 and was rejected by the Director’s Decision.

The subsequent claim application

12.  The factual basis of his original claim is that if he is refouled, he will be harmed or killed by a group of NCP(M) people because he had triggered a fight with them and they held grudges against him.

13.  The Director found that the level of risk of him being harmed or killed by NCP(M) if he returned to Nepal was assessed to be low; that state protection would be available to him and that internal relocation was an option open to him.

14.  The Board affirmed the Director’s Decision. The Board further found that he was not a reliable witness and his evidence was incredible. He had failed to establish that he had a well-founded fear he would be harmed or killed if he returned to Nepal.

15.  Under section 37 ZO 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 or withdrawn and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

16.  The applicant relies upon the fact that the Maoists know that he supports JSP and they will harm or kill him if he returns to Nepal. He further relies upon his father’s information that the NCP(M) had framed 2 false charges against him. His friend also told him that he was accused of spreading bad words of the Maoist. He also worries about COVID-19 pandemic in his country.

17.  The immigration officer has considered his circumstances and disagrees that those are the changed circumstances since his original claim was finally determined. His enemies are still the Maoists. The information from his father and his friend in Nepal is only hearsay evidence, which cannot be tested. Even if the information constitutes new circumstances, they do not give realistic prospect of success of his subsequent claim when considered together with his original claim. This means he is re-litigating his original claim.

The application for leave to apply for judicial review of the Director’s Decision

18.  The applicant has filed an affirmation in support of his application. He submitted that the Director had adopted an unnecessarily high threshold in determining the realistic prospect of success in his subsequent claim; that he did not rely on any facts of the case and was purely saying that the evidence was hearsay evidence; that COVID -19 ground was rejected as a pro forma rejection; that it was procedurally unfair not to have the Torture Claim Appeal Board for his appeal; that the Director’s Decision was biased, trying to have quick disposal of his application; that there was no screening interview for him and the decision was by the immigration officer’s own speculation without enquiry of the new circumstances and that the immigration officer failed to explain how he could avoid the 2 false charges.

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 on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director. 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 said he had nothing to say.

21.  The Director has adopted a holistic approach in the assessment of the applicant’s subsequent claim. Those grounds above are either comments without specific evidence or they are simply not true. It is obvious that the Director had considered his additional facts in support of his subsequent claim. He had not raised the threshold for his subsequent claim. The law provides that for subsequent claim, he cannot appeal to the Torture Claim Appeal Board, which had already determined his original claim. He still has the remedy of applying for leave to apply for judicial review of the Director’s Decision. The law also provides that there is no obligation for the Director to provide screening interview for his subsequent claim.  He was legally represented by a duty lawyer free of charge for his subsequent claim. The immigration officer has no duty to explain to him how to avoid the two false charges, which are hearsay evidence only. All of his grounds fail.

22.  The Director is entitled to reach his conclusion after considering his evidence as he did in this case. The applicant has raised no valid challenge to the Director’s Decision or finding of the fact.

23.  It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application. According to the Director, the incidents after the determination of the original claim are the continuation of the facts in the original claim.  I agree.

24.  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.

25.  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

26.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his 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.

27.  RPO is appropriate for the present case. See The Secretarty 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.

28.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and 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.

29.  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.

30.  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.

31.  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. 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, without leave 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 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 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 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)   This order shall cease to have effect at the end of 5 years from the date of this order.

(11)   A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

32.  The applicant’s application is dismissed.

33.  RPO in terms of paragraph 31 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