AKINBOBOLA IDOWU ALEXANDRA v. DIRECTOR OF IMMIGRATION

HCAL 828/2022

[2022] HKCFI 3096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 828 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 3 November 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 701 of 2017 (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 21 September 2022.

The procedural history

4.  The applicant is an illegal immigrant from Nigeria. On 21 June 2011, he came to Hong Kong on his passport. His stay was extended to 11 July 2011 as permitted by the Immigration Department. However, he overstayed.  He was arrested by police on 30 September 2011. He lodged a torture claim[1] by way of written representation received by the Immigration Department on 3 October 2011. His claim was considered on the grounds of Torture risk, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

5.  His claim on Torture risk, BOR 3 risk and Persecution risk was rejected by the Director by a Notice of Decision dated 28 May 2015. His claim on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, was rejected by the Director by Notice of Further Decision dated 14 June 2017.

6.  He appealed the Director’s Notice of Decision and the Director’s Notice of Further Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 15 September 2017 (the “Board’s Decision”), the Board dismissed his appeal on claim on all grounds.

7.  He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 27 July 2018 (“the Court’s Order”).

8.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 30 May 2019.

9.  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 September 2019.

10.  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 9 March 2021.

11.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 25 May 2021.

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

The subsequent claim application

13.  The factual basis of his previous claim is that if refouled, he would be harmed or killed by the family of his deceased partner, Rebecca because her family blamed him for her decease in Nigeria.

14.  The Director found that his claim was not substantiated. He found that this was an entirely private matter and, although there may have been threats, no actual action has been taken to attempt to kill the applicant.

15.  He appealed the Director’s Decision to the Board. The Board, having considered the evidence, agreed with the Director. It further found the applicant’s evidence was lacking in credibility.  His evidence before the adjudicator was altered in material respects, which the adjudicator found could not be addressed merely as an issue of interpretation.

16.  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.

17.  In support of his subsequent claim, he submitted 6 documents of police documents and affidavits in support of his case. He has also submitted his statement, in which he told the immigration officer that from his sister and his friend in Nigeria, he learned that between 2017 and 2021, Rebecca’s family took military people to various places including his family house, his sister’s premises and his friend’s premises to look for him. They told his sister that if they saw him, they would kill him. They had burned down his father’s house. His father died one week later. Later, they had gone to his mother’s house to look for him. They had had a scuffle with his mother and pushed her to the wall. She died on the same day. His brother took the applicant’s children away and took care of them. His brother received threat calls from Rebecca’s family. His brother had to leave his place with the children and lived in Togo. His enemies had also attacked his maternal cousin’s house in order to look for him. They injured his cousin’s wife severely. She has to walk with crutches permanently. They had also caused troubles to his friend, whom they knew to have contact with him.

18.  He also raised a new ground of protection, namely that he is at risk from Fulani Herdsmen who are causing a great deal of violence and insecurity across the South West of Nigeria. They have been kidnapping and killing innocent people with impunity and the area is under siege. He had submitted a number of articles and country of origin information (COI) to the immigration officer.

19.  The Director considered that the applicant relied upon the same or similar facts of his previous claim. His enemies remain the same. They were looking for him for the same reasons. The fact that they had caused troubles and damage to his family house, his family members and friend do not add any significant change to the cause. Also, the evidence was obtained from his sister and friend, which is hearsay and cannot be tested. The authenticity of the affidavits cannot be verified. Even if those incidents are true, they do not amount to significant change of the circumstances different from his previous claim. As to the new claim of the Fulani Herdsmen, their criminal activities happen across the South West of Nigeria and there is no evidence that such criminal acts cause any personal risk to the applicant.

20.  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

21.  The applicant has filed an affidavit in support of his application, in which he stated that he considered that his claim was not properly considered.

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. Before me, the applicant said that he understands the Director’s reasons for rejecting his application. He also said he has now married a Hong Kong resident and he wants this factor to be considered as well. At the hearing before this Court, the applicant also submitted a bundle of COI relating to the Fulani Herdsmen for my consideration. These COI are materials in relation to the Fulani Herdsmen criminal activities. However, I agree with the Director that they are not risks personal to the applicant.

24.  As to his ground stated under paragraph 21 above, it is only his opinion without any evidence in support. The fact that he had married a Hong Kong Resident will not assist his application. The Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, 4 April 2019 held:

“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. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”

25.  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.

26.  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

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.

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