CHARTY LAMIN v. DIRECTOR OF IMMIGRATION

HCAL 293/2024

[2024] HKCFI 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 293 of 2024

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 Applicants:

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 30 January 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2812 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 11 March 2024. Before the Court, the applicant agreed that he relied upon the same land dispute issue in his previous claim; but he claimed that the case had developed further. He could not obtain the evidence from his family for the time being.

The procedural history

4.  The applicant is a national of Gambia. He entered Hong Kong on 20 June 2014 and was permitted to remain in Hong Kong as a visitor until 18 September 2014. Since 19 September 2014, he remained as an over-stayer. On 29 September 2014, he surrendered to the Immigration Department and lodged a non-refoulement protection claim by way of a written signification dated 23 October 2014.

5.  On 23 October 2014, he made a non-refoulement claim under the Convention. His claim was assessed on torture risk under Part VIIC of the Ordinance, BOR 3 risk, and persecution risk. By Notice of Decision dated 23 December 2015, the Director rejected his claim. His appeal to the Board was rejected by the Board’s Decision dated 6 February 2017. The Director also rejected his claim on torture risk, BOR 2 risk and his appeal to the Board was dismissed by the Board on 30 November 2018 (“the Board’s Further Decision”).

6.  He applied for leave for judicial review of the Board’s Further Decision. The Court of the First Instance dismissed his application. He pursued the matter all the way to the Court of Final Appeal, which dismissed his leave application on 8 November 2023.

7.  By a letter of 15 November 2023, he applied to the Director for a subsequent claim.

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

The subsequent claim application

9.  His previous claim is based upon his fear that he will be harmed or killed by his half-brother, Bubacarr and step-mother, Nandin’s family, if refouled because of their land dispute.

10.  The Director found that his previous claim was not substantiated and rejected his application. He appealed to the Board.

11.  The Board considered the facts of the applicant’s case and confirmed the Director’s decisions that based on the low intensity and low frequency of past ill-treatment, the applicant’s future risk of harm upon his return to The Gambia was low and that the ill-treatment he received did not attain a minimum level of severity. Based on the available country of origin information, state protection would be available to lower or negate the risk; and internal relocation would be a viable option to avoid the risk. The Board concluded that there was no substance in the applicant’s claim and dismissed his appeal.

12.  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.

13.  The applicant submitted a letter dated 15 November 2023, in which he stated that although his enemies are the same, the situation has become even worse. His family has already dispersed to live in different places, his stepbrother and his family has occupied the land and built houses on it. He has married a Hong Kong woman.

14.  Having considered the additional materials submitted, the immigration officer said:

“10. … After careful consideration, it is noted that your continuous fear of being harmed or even killed by your stepbrother and his families as asserted in the Statement remains unchanged which has been duly considered in your previous claim….”

15.  Therefore, the immigration officer did not accept that there had been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

16.  The applicant has filed Form 86 dated 7 February 2024 to apply for leave for judicial review of the Director’s Decision.

17.  The applicant has filed an affirmation in support of his application, in which he said that his subsequent claim is based on fresh and completely new materials and the immigration was unreasonable to refuse his application.

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. Before me, the applicant said he agrees that his subsequent claim relies on the same reason of a land dispute with his stepbrother. However, the case has developed and he had submitted fresh materials to the immigration officer. He cannot obtain other evidence from his family for the time being. He further submitted that his health, physically and mentally, will be affected if he has to return to his country.

20.  In my view, the immigration officer had taken into consideration the new materials submitted by the applicant and he has formed his views on them. He is entitled to form such views on the additional materials. There is nothing Wednesbury unreasonable for him to do so. The applicant may take a different view himself, but there is no good reason for the Court to interfere with the immigration officer’s finding of the facts of the case.

21.  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

22.  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.

23.  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 Direcctor 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.

24.  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.

25.  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 RPO was explained to the applicant before the hearing. The applicant said he had nothing further to say.

26.  I am therefore 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 the 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 her 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 Court.

(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

27.  The applicant’s application is dismissed.

28.  RPO in terms of paragraph 26 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