MUHAMMAD FIAZ v. DIRECTOR OF IMMIGRATION

HCAL 883/2022

[2022] HKCFI 3240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 883 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 oral submissions by the Applicant 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 9 August 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1967 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 3 October 2022.

The procedural history

4.  The applicant is a Pakistani national. He arrived in Hong Kong on 25 July 2006. On 27 August 2011, he surrendered himself to the police. He raised a torture/non - refoulement claim on 3 September 2011. He claimed that if he was refouled to Pakistan, he would be killed by the supporters of Pakistan People’s party (“PPP”) because of his support for Pakistan Muslim League – Nawaz (“PML(N)”). He also feared that he would be arrested by police because of a charge of fighting in August 2001.

5.  His claim was considered on the grounds of Torture risk, 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 16 September 2014 (“the Director’s First Decision”) and Notice of Further Decision dated 16 January 2017 (“the Director’s Second Decision”) the Director rejected the applicant’s non-refoulement application for the reason that his claim was unsubstantiated. In the Director’s First Decision, the Director considered that the level of risks as he alleged if he returned to Pakistan was low [11]; that state protection was available to him [15] and internal relocation was an option open to him [18]. In the Director’s Second Decision, the Director found that he failed to establish BOR 2 risk. He appealed to the Board.

6.  The applicant’s appeal to the Board against the Director’s First Decision was late for one year and eight months. The Board, by its Decision dated 23 September 2016 (“the Board’s First Decision), rejected the applicant’s late filing of his Notice of Appeal.

7.  The applicant’s appeal against the Director’s Second Decision was rejected by the Board by its Decision dated 25 April 2017 (“the Board’s Second Decision”) without a hearing.

8.  He applied for leave for judicial review of the Board’s Second Decision and his application was late. His applications for extension of time was dismissed by the Court by its Order dated 20 January 2020 and 30 December 2020 respectively (“the Court’s Orders”).

9.  His appealed to the Court of Appeal against the Court’s Orders. The Court of Appeal dismissed his appeal on 23 June 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 11 August 2021.

11.  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 13 May 2022.

12.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 June 2022.

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

The subsequent claim application

14.  The factual basis of his previous claim is that if refouled, he would be killed by the supporters of Pakistan People’s party (“PPP”) because of his support for Pakistan Muslim League – Nawaz (“PML(N)”). He also feared that he would be arrested by police because of a charge of fighting in August 2001.

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

16.  He appealed the Director’s First Decision to the Board. The applicant’s appeal to the Board against the Director’s First Decision was late for one year and eight months. The Board, by the Board’s First Decision, rejected the applicant’s late filing of his Notice of Appeal of the Director’s First Decision for the following reasons:

(1)  the delay was serious and significant;

(2)  the applicant had no good reason for the delay; and

(3)  following the third stage of the United Kingdom Court of Appeal decision in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (03 March 2016) to evaluate all the circumstances of the case, it was just to refuse the application.

17.  The applicant’s appeal against the Director’s Second Decision was rejected by the Board’s Second Decision without a hearing.

18.  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.

19.  In support of his subsequent claim, he submitted to the immigration officer a statement, in which he said that his friend, Raja told him that his enemies were still looking for him and he would be harmed or killed by them if he returned to Pakistan; and also, he was on the wanted list of the police. Later, his another friend Sajid told him that his enemy, Amir had been discharged from prison after serving his 16 years’ imprisonment and he would take revenge on the applicant. Also, Raja had been shot dead by his enemies because Raja did not disclose his whereabouts to Amir. He submitted a photograph of a person lying on the ground, covered with blood and a screenshot of a TV news of anonymous source showing a man lying down with bandage around his chin. He also relies upon the fact that he has married in Hong Kong with 2 children and on humanitarian ground, the Director should allow him to stay in Hong Kong with his children.

20.  The Director considered the applicant’s evidence and found that the information of Raja and Sajid is hearsay evidence, which the Director did not attach any weight because the information cannot be verified and there is no other evidence to prove the identity of the person lying on the ground covered with blood and the cause of this incident. The Director takes the view that the applicant relied upon the same or similar facts of his previous claim, which has been considered in his previous claim.

21.  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 did not accept his humanitarian application for his children in this application. The Director dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

22.  The applicant has filed an affirmation in support of his application, in which he repeated the same information set out in paragraph 19 above.

DISCUSSION

23.  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).

24.  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 understands the Director’s reasons. He said that he just needs a little more time as there are still problems in his country.

25.  As to his grounds stated under paragraph 19 above, they do not assist his application. The Director is justified to have doubts on his hearsay information and the photograph and the screenshot image. The Director is also justified to conclude that he replies upon the same or similar facts in his previous claim, which had been considered. The Director is not obliged to entertain his application on humanitarian ground as held by the Court of Final Appeal in Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10:

“90. …The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. …”

26.  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.

27.  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

28.  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.

29.  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.

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.

31.  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.

32.  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

33.  The applicant’s application is dismissed.

34.  RPO in terms of paragraph 32 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