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HCAL 1138/2022
[2023] HKCFI 187
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 of 2022
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BETWEEN
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Avtar Singh |
Applicant |
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and |
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Director of Immigration |
Putative |
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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 27 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2249 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 24 November 2022.
4. The applicant submitted that he had applied for legal aid. The Director’s Decision is dated 27 September 2022. He filed Form 86 for judicial review on 24 October 2022. He applied for legal aid on 23 November, one day before the hearing. There was no acceptable explanation for his delay in applying for legal aid. The Court refused to exercise its discretion under section 15 and regulation 7A of the Legal Aid Ordinance, Cap.91 to adjourn the hearing.
The procedural history
5. The applicant is an Indian national from Punjab. He arrived in Hong Kong on 9 February 2012 as a visitor. He became an illegal over-stayer since 24 February 2012. He was arrested by the police on 9 May 2012. Two days later, he lodged a torture claim, which has since been expanded to include non-refoulement protection on three applicable grounds of the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].
6. By Notice of Decision dated 27 November 2015 (“the Director’s First Decision”) on the above-mentioned risks and Notice of Further Decision dated 13 June 2017 (“the Director’s Second Decision”) on BOR 2 risk[4], the Director refused his claim.
7. The applicant appealed the Director’s First Decision to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 25 May 2017 (the “Board’s Decision”). The applicant did not appeal against the Director’s Second Decision.
8. He applied for leave for judicial review of the Board’s Decision out of time and his application was dismissed by the Court of the First Instance on 21 April 2021 (“the Court’s Order”).
9. His application for appeal against the Court’s Order was dismissed by the Court of Appeal on 14 September 2021.
10. 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 3 November 2021.
11. His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 21 June 2022.
12. He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 27 July 2022.
13. By the Director’s Decision, the Director refused his application.
The subsequent claim application
14. The applicant claimed that if he were to be returned to India, he would be harmed or killed by members of the Akali Dal Party because he refused to join them.
15. The Director found that his previous claim was not substantiated.
16. He appealed the Director’s First Decision to the Board. The Board considered the evidence and was not satisfied with the applicant’s evidence. The Board considered the evidence vague and lacking in particulars to support his claims. It also considered the appeal failed independently for lack of credibility. Also, the Board had considered extensive Country of Origin Information (“COI”) from credible sources and was satisfied that state protection is available and internal relocation is a viable option to avoid the risk.
17. 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.
18. In support of his subsequent claim, he submitted to the immigration officer a statement, in which he stated that his former statement was prepared by his friend, which was not the whole truth. He also relies on the fact that he fears that if he returns to India, he will be killed by Harry Singh, who is the head of the ruling party Bharatiya Janata Party (“BJP”) and has been looking for him for a revenge. This is the information from his brother in India.
19. The Director considered the evidence and found that his evidence was hearsay evidence from his brother, on which the Director did not place much weight. Also, the Director considered that this new issue was never raised in his previous claim. There is no evidence to support his alleged facts on revenge. The Director did not believe his evidence on the new issue. However, the Director considered that even if his facts were accepted, he can still have state protection and internal relocation is a viable option for him.
20. The Director therefore found that the applicant relies upon the facts, which 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
21. The applicant has filed an affirmation in support of his application, in which he set out the following grounds:
a. Procedurally impropriety: failure to apply para. 2 of the UN committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant COI and consider the facts of his case; failure to conduct any screening interview for his new fresh case; failure to consider his fear of his enemies still subsisting;
b. Error / misdirection in law: failure to consider the new facts in support of his subsequent claim; failure to consider the documents submitted and no sufficient basis to conclude that he and his family members would not be at risk of being subjected to torture and or CIDTP upon refulement.
DISCUSSION
22. 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).
23. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
24. Before me, the applicant said he did not have much to say.
25. The grounds in paragraph 21, supra do not assist his application. Ground a. and b. are his personal opinions or comments without any evidence to support. As to his complaint of having no screening interview for his new fresh case, it is the procedure provided under the Ordinance. In the previous claim, there had been an interview for the applicant. The Director has to consider his previous claim together with his subsequent claim in order to determine whether he is allowed to make his subsequent claim under the unified screening mechanism. The applicant did not raise the new facts in his previous claim. This is his deliberate decision because he signed his statement in support of his previous claim. The Director, for the reasons given, did not accept his evidence on the new facts. There is nothing amiss with the statutory provision for having no screening interview for his subsequent claim. Those reasons are not valid reasons to challenge the Director’s Decision.
26. 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
27. 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.
28. 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.
29. 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.
30. 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.
31. 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
32. The applicant’s application is dismissed.
33. RPO in terms of paragraph 31 be made against the applicant.
Dated the 19th day of January 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court
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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 19 January 2023
Avtar Singh
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 19 January 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26234) in ImmD RA 7/37/C
(formerly RBCZ/1994/14 & RBCZ/9002075/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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