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HCAL 2259/2024
[2025] HKCFI 340
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2259 OF 2024
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BETWEEN
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Mia Md Mohid |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
8 January 2025 |
| Date of Judgment: |
11 February 2025 |
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J U D G M E N T
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THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 28 October 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 301 of 2019 (“the previous application”).
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 8 January 2025 and admitted that he relied upon the same facts of his previous claim.
The procedural history
4. The applicant, aged 43, is a national of Bangladesh. He was a supporter of Jamaat-e-Islami Political party (“Jel”). He came to Hong Kong as a visitor on 25 October 2011. He overstayed and was arrested and referred to the Immigration Department. On 5 March 2015, he lodged his non-refoulement claim on the applicable risks. The Awami League (“AL”) came to power in 2009 and they began to get rid of Jel supporters. He claimed that if refouled, he will be detained and tortured because his enemies are looking for him because of his Jel involvement.
5. The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that it generally accepted his evidence and the key aspects of his case. However, applying the applicable law, the Board found that he was not entitled to protection because the state was not involved and state protection will be available and internal relocation will be viable.
6. His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 27 February 2022. His appeal to the Court of Appeal was dismissed by the Court of Appeal. He filed a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismiss his Notice of Motion. He applied to the Court of Final Appeal for leave to appeal and his application was dismissed by the Court of Final Appeal on 3 May 2024.
7. By letter dated 23 May 2024, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.
The subsequent claim application
8. 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.
9. In support of his subsequent claim, the applicant submitted to the immigration officer supplementary materials such as his statement, newspaper cuttings, web materials showing that the ruling party was having mass arrests of the demonstrators and killing of the Jel leaders. Having considered the additional materials, the immigration officer found:
“11. Taking your claim at its highest, all the available information/evidence has been carefully considered. Your current fear is still related to your previous dispute with AL people (see paragraph 10(1)(D) above) and such same fear had been submitted and thoroughly considered in your previous claim which was not accepted as substained (see paragraph 8 above). You also express in your Request that you worried about the current situation of your country … . You submitted documents mentioned in paragraph 10 to explain such worry.
12. Yet, the fear from AL people is considered as a continuation of your previous claim. …
13. As for state protection, it is considered to be available to you in your Request as in your previous claim …
14. As for the internal relocation, in your previous claim, the case officer had already viewed that internal relocation alternatives were available and reasonable, which further lowered or negated the perceived risk…”
10. The immigration officer also did not accept that there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights.
11. For those reasons, the immigration officer was not satisfied with the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application for subsequent claim.
Application for leave to apply for judicial review of the Director’s Decision
12. The applicant filed Form 86 on 26 November 2024 for judicial review of the Director’s Decision.
13. In his affirmation in support of his application, the applicant said that the Director’s Decision is wrong because the immigration officer had not been to his country to understand his real situation before he made the decision.
Discussion
14. 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).
15. 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 he relied on the same reasons of his previous claim for this application.
16. The ground that he has raised in paragraph 13 will not assist him. The immigration officer does not have to go to his country to understand the situation there because he may rely on the country of origin information.
17. The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.
18. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The RPO
19. Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. 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.
20. 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.
21. 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 heart problem and he wished to be allowed to stay in Hong Kong to receive an operation here. I consider that this is not a valid reason in support of his application.
22. 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
23. The applicant’s application is dismissed.
24. RPO in terms of paragraph 22 be made against the applicant.
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(K.W. Lung)
Deputy High Court Judge
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The applicant appeared in person.
[1] The applicable risks are:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
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