ISLAM MOHAMMAD NAZRUL v. DIRECTOR OF IMMIGRATION

HCAL 1081/2022

[2023] HKCFI 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1081 of 2022

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 apply for judicial review of the Decision of the Director of Immigration dated 29 April 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2611 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 9 November 2022.

The procedural history

4.  The applicant is a Bangladeshi national. He was arrested for being an illegal emigrant on 23 July 2015.  He claimed that, if refouled, he would be harmed or killed by the members of the Awami League and a member of it because his relationship with this member’s sister.  He also faced with a fabricated robbery charge.  He applied for non-refoulment protection.

5.  His claim was considered on the grounds of Torture risk under section 37U of the Ordinance, BOR 2 risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. By Notice of Decision dated 13 September 2017 (“the Director’s Decision”), the Director rejected the applicant’s claim on the applicable grounds. He appealed against the Director’s Decision to the Board and his appeal was dismissed by the Board by the Board’s Decision dated 26 October 2018 (“the Board’s Decision”).

6.  He applied for leave for judicial review of the Board’s Decision. He was absent and the court dismissed his application for want of prosecution. He applied for extension of time to appeal this decision and his application was dismissed by the Court of the First Instance on 29 May 2020 (“the Court’s Order”).

7.  His appeal to the Court of Appeal against the Court’s Order. The Court of Appeal dismissed his appeal on 16 November 2020.

8.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 20 April 2021.

9.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 1 December 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 December 2021.

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

The subsequent claim application

12.  The Director found that his claim was not substantiated.

13.  He appealed the Director’s Decision to the Board. The Board considered the evidence. For the reasons set out in the Board’s Decision, it rejected the applicant’s evidence in support of his claim. Below are the reasons.

a.   At the hearing, the applicant was evasive to most of the questions put to him. His account was vague and lacking particulars. Given opportunities, he was unable to address its concern. It appeared that he was exaggerating his case with new allegations which were not mentioned before or which were inconsistent with what he previously said. There were suspicious allegations, inconsistencies and contradictions between his evidence to the Director and at the hearing [33].

b.  On the whole, it found that the applicant was not telling the truth. His case was vague and unbelievable. There was doubt as to whether a robbery charge had been laid against him. All other matters including the death threats and attacks by Ruoff and the AL people were not accepted [40].

14.  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.

15.  In support of his subsequent claim, he submitted to the immigration officer a statement, in which he stated that his brother in Bangladesh had told him that his enemy, Ruoff, had gone to his home there and looked for him. His brother refused to disclose his whereabouts whereupon he was assaulted by Ruoff and his people with wooden sticks. As a result, his legs were fractured and he had to walk with a walking stick. Ruoff also threatened to kill the applicant upon seeing him. Because of Ruoff’s harassment, his brother and family had to move to live in other places. The applicant had also submitted documents to the immigration officer. These documents show that his family had reported to police about Ruoff’s attacks. Warrant of arrest was issued against Ruoff. There are also warrants of criminal charges against the applicant. The applicant also raised with the immigration officer that he is suffering from mental illness, with medical evidence to support his claim.

16.  The Director considered the evidence and found that his problem with Ruoff was the same in his previous claim, which had been considered and rejected. The warrants of criminal charges are only charges which have to be investigate. The applicant should cooperate with the authority for their investigation. As to his mental problem, there is no evidence to show that he cannot obtain assistance if he returns to Bangladesh. The Director therefore found that the applicant relies upon the same or similar facts in support of the subsequent claim, such facts, when considered together with his previous claim, will not give him a realistic chance of success in his subsequent claim. The Director dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

17.  The applicant has filed an affirmation in support of his application, in which he said the Director’s Decision is wrong.

DISCUSSION

18.  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).

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

20.  Before me, the applicant said that he had submitted a warrant issued by the High Court in Bangladesh confirming that he was convicted of murder in his absence. At the trial, he was represented by a lawyer. The High Court had passed a sentence of life imprisonment on him. With the assistance of the court interpreter, I had examined this warrant myself. This warrant verified what he said in Court. The conviction and sentence were passed after the date of the Board’s Decision. Therefore, it can be seen that this happened after the Board’s Decision. The applicant said that he had submitted the said warrant to the immigration officer. But the Director has not mentioned it in the Director’s Decision.

21.  On this issue, I have considered that the applicant was convicted by the court in Bangladesh in his absence. There is a question of whether, upon refouled, he would have a fair procedure to appeal against the court’s conviction and sentence. There is no expert opinion on this issue. However, I decide that the applicant does not have an arguable case for his intended judicial review on this issue for the following reasons:

a.   he was aware of his trial as his had his legal representative to appear on his behalf before the court at the trial;

b.  it was his deliberate choice not to attend the trial despite he had had legal advice; and

c.   the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held:

“11. The Refugee Convention provides for the protection of refugees.  It does not apply to Hong Kong.  The term “refugee” is defined to apply to any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

These five reasons will be referred to as “the Refugee Convention reasons”.

12.   The Contracting States must not expel a refugee lawfully in their territory save on grounds of national security or public order: Art. 32(1).  They must not expel or return (‘refouler’) a refugee to the frontiers or territories where his life or freedom would be threatened on account of one of the Refugee Convention reasons: Art. 33(1).  The benefit of this provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country:  Art. 33(2).

13.   However, the Refugee Convention does not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the relevant international instruments; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee….”

22.  As the applicant was convicted of murder and sentenced to life imprisonment, according to the Court of Final Appeal, the Convention does not apply to him. There is no valid reason from the applicant to challenge the Director’s Decision.

23.  Since there is no realistic prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.  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.

25.  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.

26.  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.

27.  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. Upon my enquiry of what comments on the intended RPO, he said he had nothing to say.

28.  I am 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 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 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 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 Judge.

(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

29.  The applicant’s application is dismissed.

30.  RPO in terms of paragraph 28 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