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HCAL 938/2021
[2021] HKCFI 2266
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 938 of 2021
BETWEEN
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Dalowar Mohammad |
Applicant |
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Director of Immigration |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 file the application for judicial review of the decision of the Director of Immigration dated 27 May 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 533 of 2017 (the “original 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. At the hearing, the applicant said that he had applied to the Legal Aid Department (the “LAD”) for assistance yesterday. He produced a card issued by the LAD. He said that he was not aware of legal aid assistance, not until his friend told him. But he was unable to explain that he has been receiving legal aid throughout the proceedings. He was legally represented by the Duty Lawyer for his subsequent claim application.
4. Pursuant to section 15 of the Legal Aid Ordinance, Cap. 91, for normal cases, the proceedings should be stayed for 42 days under Regulation 7A of the Legal Aid Ordinance, Cap. 91. However, having considered the applicant’s late application to the LAD without good explanation and it became obvious that he was attempting to take advantage of his application to delay the matter, which, coupled with the procedural history and there being no merits in his subsequent claim, I decided to lift the stay and the matter proceeded. See White Book Vol 2 of 2021 M1/15/1: Leader Crown Ltd v Herbert Tsai & Partners (unrep.) HCA 3038/2003, [2005] HKEC 869, by J Chu and Fairwing Investment Ltd v Wan Sai Chung & Wan Sai Hang HCA 2460/2014, Deputy High Court Judge Li Pichon in Chambers, 10 May 2016.
The procedural history
5. The applicant is an illegal immigrant from Bangladesh. He raised non-refoulement claim with the Immigration Department on 27 December 2013 on the grounds of Torture risk under section 37U (1) of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bills of Right Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.
6. By the Director’s Decision dated 5 January 2016 and the Director’s Further Decision dated 26 June 2017, the Director rejected his claim on all the risks and he appealed to the Torture Claims Appeal Board. His appeal was dismissed by the Board’s Decision dated 21 July 2017 (the “Board’s Decision”).
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 25 June 2018 (the “Court’s Order”).
8. His appeal against the Court’s Order to the Court of Appeal was dismissed on 29 October 2018.
9. His motion of appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 14 January 2019.
10. His application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 20 May 2020.
11. He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 28 May 2020.
12. By the Director’s Decision, the Director refused his application.
The subsequent claim application
13. The factual basis of his claim is that if he is refouled to Bangladesh, he will be harmed or killed by members of the Awami Lague (“AL”) because a lot of AL members had turned to support of the Bangladesh Nationalist Party (“BNP”) as a result of his propaganda for the BNP. The Director found that there was no ground for believing that he would be so subjected to the risks; that state protection would be available to him and that internal relocation was an option open to him.
14. The Board agreed with the Director and rejected his appeal on the same grounds.
15. 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 realist prospect of success.
16. The applicant relies upon the following new circumstances as he was told by his father in Bangladesh:
a. the AL members were still looking for him and they had come to the house causing disturbance to the family;
b. his cousin had been killed by the AL members; and
c. COVID – 19 threat was serious in Bangladesh.
17. The Director rejected his grounds. The information was obtained from his father, which was hearsay. His fear of the AL supporters was the same issue in his original claim and had been duly considered. The fact that his cousin was killed did not constitute significant change of circumstances that would give him reasonable prospect of success in his original claim. His assumption that he could not go back to Bangladesh due the threat of COVID-19 was too far-fetched.
The application for leave to apply for judicial review
18. The applicant has filed an affirmation in support of his application and said that the facts he had submitted were the truth.
19. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
20. In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 [the Director].”
21. The Director has assessed his evidence and came to his conclusion as he did in this case and he has given his reasons for his conclusion. The applicant has given no valid ground to challenge the Director’s Decision.
22. 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.
23. Since there is no reasonable prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The Restricted Proceeding Order
24. In accordance with Practice Direction 11.3, RPO should be made under the following circumstances:
“8. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”
25. As shown by the procedural history above, it is plain that the applicant refused to accept the unfavourable decisions made by the Director, the Board and the courts. His reasons in support of his subsequent claim are clearly insufficient to overcome the reasons given by the Director and the Board in rejecting his claim. He should be well aware of those reasons himself as he was legally represented for his subsequent claim application.
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, categorically fitting in the description of
“the vexatious litigants typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.”[1]
The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a restricted proceedings order (“RPO”) and the extended order against him.[2]
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 [2002] 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 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129.
28. 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. The Court should take preventive measures against any abuse.
29. For this reason, the Court has called upon the applicant to appear before it to show cause why a RPO should not be made against him. The applicant has been explained the proposed RPO by the court interpreter outside this court before hearing.
30. Upon being requested to show cause why the Court should not make the RPO against him, the applicant said he has 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 on the same facts 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. A RPO in terms of paragraph 31 be made against the applicant.
Dated the 6th day of August 2021
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(M.O. WONG)(Ms) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 6 August 2021
Dalowar Mohammad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 6 August 2021
Director of Immigration
Putative Respondent’s ref. no.:
L/M (21105) in ImmD RA 7/37/C (formerly RBCZ/9002125/17 & RBCZ/1149/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (1997-1998) 1 HKCFAR 72, §48
[2] Ibid §§7 & 8
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