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HCAL 665/2021
[2021] HKCFI 2265
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 665 of 2021
BETWEEN
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Miah Mohammad Shamim |
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 apply for judicial review of the decision of the Director of Immigration dated 16 April 2021 (“the Director’s Decision”) refusing his application for a subsequent claim of HCAL 226 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 Bangladesh. He raised non-refoulement claim with the Immigration Department on 1 March 2014 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention and BOR 2 risk, Right to Life under Article 2 of the Bills of Right Ordinance.
4. His claim was rejected by the Director by Notice of Decision dated 21 January 2016 on the Torture risk, BOR3 risk and Persecution risk and Notice of Further Decision dated 21 June 2017 on the BOR 2 risk.
5. He appealed to the Torture Claim Board (“the Board”) against the Director’s Notice of Decision only. By its Decision dated 15 May 2017 (the “Board’s Decision”), the Board rejected his appeal.
6. He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 10 August 2018 (the “Court’s Order”).
7. He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed on 28 January 2019.
8. He applied for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 15 April 2019.
9. He appealed against the Court of Appeal’s decision to the Court of Final Appeal and his appeal was dismissed by the Court of Final Appeal on 22 July 2020
10. He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 27 July 2020.
11. By the Director’s Decision, the Director refused his application.
The subsequent claim application
12. The factual basis of his claim is that if he is refouled to Bangladesh, he will be harmed or killed by (i) the supporters of the Awami League (“AL”) and the Bangladesh Chhatra League due to his affiliation to the Bangladesh Nationalist Party (“BNP”); (ii) his neighbour for causing him wounds in an argument over a land dispute; (iii) his money-lender for failing to repay the loan and (iv) the false accusation of murder or engaging terrorist activities filed by his political enemies in Bangladesh.
13. The Director found that the level of risk of him being harmed or killed if he returned to Bangladesh, was low; that there was no evidence to show that state protection would not be available to him and that internal relocation was an option open to him.
14. The Board found that there was no evidence to show that the state was involved. It further found that state protection would be available to him if he returned to Bangladesh.
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 supported by documents submitted by his legal representative:
a. the AL people went to his family in Bangladesh looking for him and his brother had gone missing; and
b. he feared that his absconded partner, who was suspected to have killed his another partner in Bangladesh, might kill him if he returned to Bangladesh.
17. The Director rejected his grounds. The first ground only relates to his brother, not to him personally. The second ground was not mentioned in his original claim. The Director did not accept his explanation that he was unaware that he should mention it because he had been notified to give all his reasons in support of his claim. The Director also refused to accept his evidence because there were inconsistencies and contradictions in his evidence, for which he was unable to give satisfactory explanation.
18. The immigration officer accepted that there had been significant change of circumstances since his previous claim was finally determined. However, the immigration officer did not accept that such circumstances would give his subsequent claim realistic prospect of success.
The application for leave to apply for judicial review
19. The applicant has filed an affirmation and attached the Director’s Decision to it without specifying any ground in support of his application.
20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
21. 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].”
22. The Director has rejected his first ground because it had nothing to do with him. The Director rejected his second ground because he did not mention it in his original claim.
23. Although the Director considers that there are significant changes of the circumstances after the determination of the original claim, those changes are no more than excuses for his subsequent claim because such changes will not alter the fact found in the original claim, that is, state protection would be available to him and internal relocation is an option open to him as found by the Director. The applicant should be well aware of this as he was legally represented for his subsequent claim application.
24. 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.
25. 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
26. 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.”
27. 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.
28. 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]
29. 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.
30. 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.
31. 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.
32. Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that he understood the contents of the RPO, but he had nothing to say.
33. 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
34. The applicant’s application is dismissed.
35. A RPO in terms of paragraph 33 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
Miah Mohammad Shamim
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 (21486) in ImmD RA 7/37/C (formerly RBCZ/9002126/17; RBCZ/1575/14)
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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