HUSSAIN IFTIKHAR v. DIRECTOR OF IMMIGRATION

HCAL 1621/2021

[2022] HKCFI 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1621 of 2021

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 22 October 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1354 of 2018 (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 Pakistan. He raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 9 July 2010, which was rejected by the Director of Immigration (the “Director”) on 27 July 2012. He did not appeal against this decision. He lodged non-refoulement claim with the Immigration Department by written signification on 5 October 2015 on the grounds of BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention. 

4.  His claim was rejected by the Director by a Notice of Decision dated 27 June 2017.

5.  He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 15 June 2018 (the “Board’s Decision”), the Board dismissed his appeal.

6.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 29 July 2019 (the “Court’s Order”).

7.  He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 11 December 2019.

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 24 January 2020.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 18 May 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 2 July 2021.

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 refouled, he will be harmed or killed by his former schoolmates who belonged to the Shia Group and he belonged to the Sunni Sect and was an active member of Taliban Jamat and Al-Sunni Jamat.

13.  The Director found that his claim was not substantiated. He found that there was no substantial ground for believing that he would be harmed or killed by his schoolmates and that he did not seek protection from the authorities in Hong Kong at the first instance he had arrived in Hong Kong; that state protection was available to him and that internal relocation was an option open to him.

14.  The Board affirmed the Director’s Decision. It further found that it did not accept his evidence in support of his claim because there were contradictions in his story. The Board also found that state protection would be available to him as there was no evidence to show that the government was involved and that internal relocation was an option open to him.

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 realistic prospect of success.

16.  In support of his subsequent claim, he said that his enemies are still looking for him. They had caused troubles to his family in Pakistan. They laid fake charges against him. He has been constantly receiving threats from his enemies even though he is physically in Hong Kong. He learned from his brother in Pakistan that a false charge of murder was laid against him and he would be arrested and charged if he returned. He also feared the pandemic in Pakistan. His brother also told him that his uncle (Sadiq Ali), nephew (Rashid Ali) and brother-in-law (Asif) were brutally murdered by the Shia members. He believed that his enemies took revenge on him and killed his relatives.

17.  The Director does not accept that those are significant change of circumstances as his alleged risks and threats all arise from his original claim, which had been considered. His enemies are the same and for the reasons they looked for him are the same. Those grounds had been considered by the Director and the Board in his original claim.  The allegation that his enemies took revenge of him by killing his relatives is far-fetched as he has been away from Pakistan for over a decade. The additional information is hearsay materials, which cannot be tested. In any event, they are at most the updates of his original situation. Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success. Pandemic COVID-19 is a worldwide issue, not confined to Pakistan.

The application for leave to apply for judicial review

18.  The applicant has filed an affirmation in support of his application. He stated that the Director’s Decision is wrong because:

a.     the immigration officer had place a high standard for the realistic prospect of success;

b.     he had not taken his unique situation into account fairly or carefully;

c.     he did not rely upon any facts of the case;

d.     there was no interview for him and he was not legally represented for the screening;

e.     he ignored the danger of him being a wanted person, especially the matter is a religious revenge and many innocent people had been killed without justice; he was unreasonable not to accept his facts;

f.     he relies on the previous claim and did not give weight to the current situations such as he would be arrested by police on serious charges;

g.     there was no procedure for appeal to the Appeal Board, which is procedurally unfair; and

h.     overall, the Director was biased and he only wanted to dispose of his application as quickly as possible.

19.  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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that the Director was not wrong to make his Decision.

21.  It is quite clear that the immigration officer had considered his additional information and evidence before making his decision on behalf of the Director and he had given the reasons in support of his findings.

22.  The applicant is right to say that there was no interview for his subsequent claim application because the law so provides. The immigration officer simply acted in accordance with the statutory provisions. Also the law provides no revenue for appeal at the Appeal Board. He had had screening interview and appeal for his original claim. The law provides that such procedures are not applicable to subsequent claim applications. The other grounds are his opinions and comments without any specific evidence in support of them.

23.  The applicant has no valid reason to challenge the Director’s Decision.

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 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

26.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his original 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.

27.  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.

28.  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 applicant has been explained the proposed restricted proceedings order before this hearing.

29.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that he had nothing to say.

30.  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 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 Court of First Instance, without leave of the Court of First Instance.

(2)     All applications for leave under paragraph (1) shall be made to Deputy 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 this Court or 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 this Court or 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 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 this Court or 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

31.  His application is dismissed.

32.  RPO in terms of paragraph 30 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