SHRESTHA SANTOSH KUMAR v. DIRECTOR OF IMMIGRATION

HCAL 556/2021

[2021] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 556 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.   This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 13 April 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 434 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.

The procedural history

3.   The applicant is an illegal immigrant from Nepal. He raised non-refoulement claim with the Immigration Department on 22 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.

4.   By the Director’s Decision dated 18 May 2015 and the Director’s Further Decision dated 28 October 2016, 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 6 July 2017 (the “Board’s Decision”).  

5.   He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 24 May 2018 (the “Court’s Order”).

6.   His appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 6 September 2018.

7.   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 24 January 2019.

8.   His application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 6 January 2020.

9.   He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 17 January 2020.

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

The subsequent claim application

11.   The factual basis of his claim is that if he is refouled to Nepal, he will be harmed or killed by the Maoists because he refused to join their party and also because of a dispute during the election campaign.  He also claimed that the finance company from which his parents had borrowed money would harm him because he was unable to repay the loan.

12.   The Director found that his claim was not substantiated as the level of risk of being harmed or killed 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.

13.   The Board agreed with the Director and rejected his appeal.  It further found that that his case was only a private matter between the unknown man (who claimed to be Maoists) and him for kidnapping him and asking him to join them.  The Board found that he was not the target of attack and he was just involved in a fight with members of the Maoists.

14.   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 and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

15.   The applicant had raised new circumstances in support of his application.  The Director, having considered his evidence and for the reasons set out in his Decision [9-11], concluded that they are the similar issues which he had raised in his original claim.  He confirmed that no action was taken by the creditor against him [11.4].  His allegations that the Maoists were still harassing his family and they are more powerful are not supported by evidence.  Those circumstances, even if taken at face value, would not constitute change of circumstances that would give any realistic prospect of his subsequent claim.

The application for leave to file judicial review application

16.   The applicant has filed an affirmation in support of his application.  In his affirmation, he invited the Director or the Court to visit his country to understand his situation there.  He has also appeared before me.

17.   The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to its Decision on the applicant’s subsequent claim.  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).

18.   The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.   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].”

20.     The Director has assessed his evidence.  The Director is clearly entitled to come to his conclusion.  It is unnecessary for the Director, still less for the Court, to pay a visit to Nepal in order to understand his situation.  The Director has already considered the country of origin information in his investigation of his original claim.

21.   His suggestion of inviting the Director to go to his country for inspection is unnecessary.  The burden is on him to prove his case.  The Director can simply rely upon the country of origin information, which he had done, to make his decision.  Before me, his said that he wanted to stay in Hong Kong a bit longer.  His reasons do not assist his application.

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 Proceedings 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.  In his subsequent claim application, he was legally represented.  The duty lawyer should have advised him of the merits of his case.

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 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 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 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 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.

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

[1] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1, §48

[2] Ibid §§7 & 8