MUHAMMAD ASIR v. DIRECTOR OF IMMIGRATION

HCAL 409/2022

[2022] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 409 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 14 March 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1795 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.

The procedural history

3.  The applicant is an illegal immigrant from Pakistan. On 26 October 2015, he sneaked into Hong Kong illegally from China, He was arrested by police on 27 October 2015 and was referred to the Immigration Department. He lodged non-refoulement claim by way of written representation on 29 October 2015. His claim was then considered under the unified screening mechanism on the grounds of Torture risk under the Ordinance; 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 and Persecution risk under the Refugee Convention.

4.  His claim was rejected by the Director by a Notice of Decision dated 14 December 2017.

5.  He appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 17 August 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 30 June 2020.

7.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 29 December 2020.

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 30 March 2021.

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 16 November 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 21 December 2021.

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

The subsequent claim application

12.  The factual basis of his previous claim is that if refouled, he would be harmed or killed by his paternal uncle, Nader Khan (“Nader”), who was associated with the political party, Pakistan-e-Insaf (“PIY”) since he had a land dispute with him.

13.  The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies in Pakistan was low as shown by the low intensity and frequency of past ill-treatments from them; that his enemies’ threats were unlikely to materialize; that state protection would be available to him; and that internal relocation was an option open to him.

14.  He appealed the Director’s Decision to the Board. The Board, having considered the evidence, attached no credence at all to his claim at all. It found that the applicant had fabricated a case for his claim.

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 re-affirmed his claim that Nader is still looking for him. Also, he has caused fabricated charge of having threatened to kill another person, Akhtar against him. He feared that he would be harmed if he returned to Pakistan. Police cannot protect him and internal relocation is not possible. He submitted a police report to show that Akhtar had filed a complaint against him.

17.  The Director considered that the additional information had been considered in his previous claim. The police report only showed that a complaint had been made to police, which does not mean that he will be wrongly charged or tortured. He has the responsibility to assist police for their investigation. There is no evidence to show that the state is involved. 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. He dismissed the applicant’s subsequent claim application.

The application for leave to apply for judicial review

18.  The applicant has filed an affirmation in support of his application. Below is a summary of his submissions.

(1)  The Director was unfair and unreasonable in his assessment of his case.

(2)  The Director has placed the application on an unnecessarily high threshold.

(3)  The Director was biased. He did not rely upon facts of the case. He only repeated what was decided by the TCAB in this case.

(4)  There was no interview for his application as there should be screening interview.

(5)  The Director did not take into account his documentary proof of the police report. Given time, he will be able to get the police warrant. The Director did not consider his additional material for his subsequent claim.

(6)  He was not given the chance to appeal to the Torture Claims Appeal Board as it should be the case. This is contrary to fairness and justice.

(7)  The Director’s Decision was made in a biased and perfunctory manner.

DISCUSSION

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, §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 asked me to review his case because he could not go back.

21.  Those grounds in paragraph 18 are not valid reasons to challenge the Board’s Decision. Grounds (1), (2). (3) and (7) are his bare assertions and opinions without any evidence in support. Grounds (4) and (6) fail as these procedures are provided under the Ordinance. Ground (5) does not assist him because the Director has considered that even if he is to be arrested by police, he should assist the police to make investigation. As the state is not involved in his case, the state will protect his safety and interest if he returns to his country.

22.  The applicant is unable to show any valid reason to challenge the Director’s Decision.

23.  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.

24.  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

25.  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.

26.  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.

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 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 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

31.  The applicant’s 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