SHEIKH FIRUJ v. DIRECTOR OF IMMIGRATION

HCAL 1191/2021

[2021] HKCFI 2916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1191 OF 2021

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D E C I S I O N

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A.  Introduction

1.  By his Notification of Decision dated 17 September 2021 [2021] HKCFI 2731, DHCJ KW Lung:

(1)  dismissed the Applicant’s application for leave to apply for judicial review of the decision (“Decision”)  of the Director of the Immigration (“Director”)  dated 5 July 2021, refusing permission to make a subsequent claim to non-refoulement protection; and

(2)  made a restrictive proceedings order (“RPO”), prohibiting the Applicant from commencing or continuing any legal proceedings relating to a non-refoulement claim by the Applicant in the High Court, without leave of the Court of First Instance.

2.  By affirmation dated 20 September 2021, the Applicant has now applied to quash the RPO, as he wants to appeal from the refusal of the grant of leave to apply for judicial review.

3.  Under the terms of the RPO itself, the Applicant was to give at least seven days’ notice in writing to each intended defendant or respondent of her intention to make the application, and to enclose with the application any response received.  No response was included with the application.

4.  Further, any intended defendant or respondent having notice of this application is entitled, but under no obligation, to place before the Court written representations about the application.  As at the date of this Decision, no written representations have been received.

5.  In accordance with the terms of the RPO itself, and with the Practice Direction 11.3, this application is being dealt with by the Court on paper and without any oral hearing.

B.  Basis of Application

6.  The Applicant’s affirmation attaches a document setting out what he says are his grounds of the application.  They are as follows [sic]:

I.  The High Court dismissed my leave to apply for judicial review and gave order of RPO.  Please quash RPO.

II.  I want to appeal as I have problem in my country.

III.  If I failed to appeal Hong Kong Immigration will send me my country and my enemy will kill me.

IV.  To alive in this world is fundamental right.  Let me alive.

V.  I request you to help but you send me hell.

VI.  This is a humanitarian apply.

C.  Procedural History

7.  The Applicant is an illegal immigrant from Bangladesh, and the basis of his original non-refoulement claim made on 17 March 2016 was that he would be harmed or killed by a secretary of the Awami League (“AL”)  and his people, because the Applicant was a member of the Bangladesh Nationalist Party and he refused to join the AL.

8.  By notice of decisions dated 18 August 2016 and 9 June 2017, the Director found that the level of risk of him being harmed or killed if the Applicant returned to Bangladesh was assessed to be low, that state protection would be available to him, and that internal relocation was an option open to him.  In its decision dated 15 September 2017, the Torture Claim Appeal Board (“Board”)  rejected the Applicant’s appeal.  The Board not only affirmed the Director’s decision, but found that nothing said or presented as evidence by the Applicant could be given any credence whatsoever.

9.  The Applicant then applied for leave to apply for judicial review in HCAL 686/2017.  That application was rejected by the Court by its order dated 17 July 2018.  The Applicant’s appeal to the Court of Appeal was dismissed on 20 December 2018.  The Applicant’s application by notice of motion for leave to appeal was dismissed by the Court of Appeal on 1 April 2019, and a renewed application to the Court of Final Appeal was dismissed by that court on 4 August 2020.

10.  The Applicant then applied to the Director for a subsequent claim, by letter dated 24 August 2020.  That application was refused by the Decision.

11.  As already indicated, by these proceedings HCAL 1991/2021, the Applicant sought leave to apply for judicial review of the Decision, refusing his application to make a subsequent claim for non-refoulement protection under the Director’s unified screening mechanism.

12.  On 17 September 2021, the Deputy Judge made (amongst others)  the orders already set out at paragraph 1 of this Decision.

13.  In refusing leave to apply for judicial review of the Decision, the Deputy Judge held that the Director was entitled to reach his conclusion after considering the evidence as he did.  The Applicant raised no valid challenge to the Decision or finding of the facts.  Rather, it was clear that the Applicant is re-litigating his original claim in his subsequent claim application.  The Deputy Judge agreed with the Director’s determination that any incidents after the determination of the original claim were continuation of the facts in the original claim.  There being no realistic prospect of success in the subsequent claim, leave to apply for judicial review was refused.

14.  The RPO was made on the basis that the attempt to re-litigate the facts in support of his original claim for a subsequent claim amounted to an abuse of the process.  The application for the subsequent claim should be viewed together with the procedural history of the case.  The Deputy Judge considered the Applicant’s offered explanation as to why no RPO should be made (that his case would close after the subsequent review)  and was satisfied that, if not restrained, the Applicant would likely proceed with the application in other proceedings for the sole purpose of remaining in Hong Kong.

D.  Consideration

15.  As can be seen from the affirmation in support of the current application, the Applicant has provided no new or further information as might justify or show merits in any subsequent claim, following the full consideration and rejection of his original claim.

16.  The first paragraph simply recites the dismissal of his application in these proceedings and the making of the RPO.  The second paragraph simply states his desire to appeal because he has a “problem” in his country.  The third paragraph simply repeats his assertion that he would be killed if returned (the very assertion which has been fully considered through the previous decision-making processes following the original claim to non-refoulement protection).  The last paragraphs add nothing by way of new information or such as might identify any realistic prospect of success on a subsequent claim.  Nothing stated in the current application seems to me to identify any realistic prospect of success on any intended appeal from the Deputy Judge’s orders.

17.  The repetition of matters already fully considered, and the other matters stated, emphasise the vexatious and calculated attempt by the Applicant to delay the inevitable and/or a refusal to accept the unfavourable final result of litigation.

18.  In the circumstances, there is no basis for exercising the discretion to set aside the RPO, or to permit the Applicant in any event to circumvent the RPO so as to pursue the stated appeal.

E.  Result

19.  The Applicant’s application is therefore dismissed, with no order as to costs.