DO MANH HAU v. DIRECTOR OF IMMIGRATION

HCAL 1286/2024

[2024] HKCFI 2495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1286 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial eview of the decision of the Director of Immigration dated 23 April 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1781 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 11 September 2024 and admitted that he relied upon the same reasons in his previous claim in support of his subsequent claim.

The procedural history

4.  The applicant is a national of Vietnam, aged 50. He was arrested by police for illegal remaining in Hong Kong on 11 April 2017. He lodged his claim for non-refoulement on all applicable grounds[1] on 24 April 2017.

5.  His non-refoulement claim in his previous claim is based upon that if refouled, he would be harmed or killed by his creditor because he was unable to repay his debts.

6.  The Director rejected his application for the reason that his claim was not substantiated. His appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) was dismissed by the Board. The Board dismissed his appeal because the applicant’s case was a private borrowing and there was no evidence that the government was involved in the transactions. It also agreed with the Director that state protection was available to the applicant and also that internal relocation was an option open to him.

7.  He applied to the Court of the First Instance for leave for judicial review of the Board’s decision. The Court of the First Instance dismissed his application on 7 July 2020. He then applied for extension of time to appeal to the Court of Appeal, which application the Court of the First Instance refused. He pursued all the way to the Court of Appeal and the Court of Final Appeal, and his application for leave to appeal to the Court of Final Appeal is still pending.

8.  By letter dated 15 August 2023, the applicant applied for subsequent claim.

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

The subsequent claim application

10.  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.

11.  The applicant had submitted a statement to the immigration officer through his duty lawyer.

12.  Having considered his statement and other additional materials, the immigration officer found that:

(1) his fear of his enemy was the same enemy in his previous and the cause of the fear was the same;

(2) state protection would be available to him if he returns to Vietnam;

(3) internal relocation would be a viable option for him.

13.  The immigration officer was therefore not satisfied that there had been a change of circumstances since his previous claim was finally determined and such change, if any, when taken together with the previous claim, would give the subsequent claim a realistic prospect of success. The Director therefore rejected his application for subsequent claim.

The application for leave to apply for judicial review application

14.  The applicant has filed Form 86 on 6 August 2024 to apply for leave for judicial review of the Director’s Decision.

15.  In the affirmation in support of his application, the applicant attached his written statement, in which he has raised the following grounds:

(1) the Board’s Decision is not fair or reasonable as it has not given weight to his BOR 2 right;

(2) the Board failed to give proper weight to the issue of state acquiescence;

(3) the Board has placed too much weight on the Country of Origin Information (“COI”) without giving proper weight to his personal background and experience. Although it had set out the COI that show that state protection would not be available in Vietnam, it had not given the proper weight to this information;

(4) the Board was unfair in deciding whether his evidence should be accepted and it required him to answer questions that he was not in a position to answer; and

(5) the Board failed to give sufficient weight to his argument before coming to its decisions.

Discussion

16.  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).

17.  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 upon the same facts in his previous claim in support of his application for subsequent claim.

18.  The reasons set out under paragraph 15 are bare assertions or comments of the applicant without any evidence in support. They are not valid reasons to challenge the Director’s Decision[2].

19.  There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.

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

The RPO

21.  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.

22.  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.

23.  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.

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.