RE LOURENCO DA SILVA

CACV 558/2021, [2024] HKCA 247

On Appeal From [2021] HKCFI 3591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 558 OF 2021

(ON APPEAL FROM HCAL NO 1477 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in Form CALL-1 dated 26 November 2021, by which the Deputy Judge refused to grant the applicant leave to apply for judicial review and further made a restricted proceedings order (“RPO”)  against the applicant (“the Leave Decision”)  ([2021] HKCFI 3591).

2.  The intended judicial review is against the decision of the Director of Immigration (“the Director”)  dated 7 October 2021 (“the Director’s 2^nd Decision”)  refusing to allow him to make a subsequent claim.

3.  On 10 December 2021, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a repeated non-refoulement claimant.  He is a national of Guinea-Bissau, West Africa with right of residency in Nigeria.  He entered Hong Kong on 25 October 2010 with permission to remain in Hong Kong as a visitor up to 8 November 2010 when he did not depart and overstayed.  He was arrested by police on 6 September 2011.  On 7 September 2011, he was referred to the Immigration Department.  He subsequently lodged a non-refoulement claim  by way of written representation dated 8 September 2011.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [5] of the Form CALL-1 dated 17 May 2019 ([2019] HKCFI 451)  of the applicant’s previous claim under HCAL 569/2018.

5.  Briefly stated, the applicant claimed that if refouled to Guinea-Bissau, he would be harmed or killed by his father’s relatives over a land dispute, and if refouled to Nigeria, he would be harmed or killed by the family of Oduche, a deceased friend, who blamed him for his friend’s death.

6.  By a Notice of Decision dated 6 December 2016 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim on all the applicable grounds including torture risk[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4]. The Director also did not accept that the applicant was a genuine non-refoulement protection seeker.

7.  The applicant appealed against the Director’s 1^st Decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  by a Notice of Appeal on 7 February 2017, which was filed substantially out of time.  On 29 December 2017, the Board disallowed the late filing of the Notice of Appeal upon rejection of his explanation that the delay was due to his ill-health.  The applicant then sought leave to apply for judicial review under HCAL 569/2018 which was refused by the Deputy Judge on 17 May 2019.  The applicant lodged an appeal against the Leave decision.  On 5 September 2019, the Court of Appeal dismissed the appeal.  The applicant’s Notice of Motion for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Appeal on 24 December 2019 and by the Appeal Committee of the Court of Final Appeal on 5 March 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

8.  On 7 April 2021, the applicant filed a request to the Director to make a subsequent claim as he had received photos from a friend of his showing that some unknown trespassers went to his compound in his home country to build a new house there and placed some toxic material inside the house which might pose harm to him.  He also claimed that as his health condition had been getting worse, he would not be able to receive proper medical care if refouled to Guinea-Bissau or Nigeria.  By way of letters dated 17 May 2021 and 20 July 2021, the Director requested the applicant to provide further information and evidence in writing in support of his request for making a subsequent claim, which he subsequently did, through the Duty Lawyer Service, by a letter dated 26 July 2021 enclosing further evidence and information and supporting documents.

9.  By the Director’s 2^nd Decision, the Director refused to allow the applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim.  The Director considered that the applicant had failed to provide sufficient evidence to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim determined.  The Director also considered that there was no evidence that the applicant would be subject to any risk of harm if refouled to Nigeria other than a bare assertion based on hearsay information, and that the supporting documents provided in relation to the applicant’s current health condition and medical appointments in Hong Kong had nothing to do with his claimed fear in Guinea-Bissau or Nigeria.  The Director did not accept that those alleged changes, when taken together with the materials previously submitted in support of his previous claim, would give his subsequent claim a realistic prospect of success.

The Leave Decision

10.  On 22 October 2021, the applicant applied for leave to apply for judicial review against the Director’s 2^nd Decision[5] and commenced the proceedings under HCAL 1477/2021.  No ground of review was provided by the applicant in his Form 86 or supporting affirmation.  On 9 November 2021, the applicant attended an oral hearing before the Deputy Judge.

11.  As stated at [14] of the Leave Decision, after considering the Director’s 2^nd Decision with rigorous examination and anxious scrutiny, the Deputy Judge did not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the applicant’s request for a subsequent claim.  Nor was the Deputy Judge satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  Accordingly, the Deputy Judge refused the applicant’s leave application.

12.  As stated at [15] - [19] of the Leave Decision, in light of the fact that the applicant’s non-refoulement claim had already been finally and conclusively determined in previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 5 March 2021, but the applicant was still trying to re-litigate his case by seeking to make a subsequent claim based on essentially the same facts and basis as earlier mentioned and without any viable ground, the Deputy Judge held that the applicant’s conduct amounted to an abuse of process.

13.  Accordingly, the Deputy Judge made the following RPO against the applicant at [20] of the Leave Decision:

“(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 unless with leave obtained under paragraph (2);

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

…

(10)  This order shall cease to have effect at the end of 5 years from the date of this order; and

…”

The Appeal

14.  On 10 December 2021, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT FIND ANY DIFFERENCE OF MY TWO CLAIM. I WANT TO SHOW THE DIFFERENCE OF MY TWO CLAIM.” (sic)

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 December 2021, the applicant lodged his written submissions on 24 December 2021. In those submissions, he repeated that he had a life and death problem in his home country where he had strong, influential and powerful enemy.  He also complained that the Director rejected his claim and the Deputy Judge refused to grant him leave for judicial review.  He requested the Court of Appeal to grant him leave and give him a new remedy.  There is no appeal against the RPO.

Discussion

16.  The relevant principles regarding appeals on non-refoulement cases are set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 

17.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board or the Director afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

18.  In light of the above, it is thus incumbent on the applicant to point out, with sufficient particularity, errors allegedly committed by the Deputy Judge in assessing the Director’s 2^nd Decision.

19.  At the outset, the applicant has not advanced any grounds showing any errors in the Leave Decision.  There are no viable grounds of appeal.  On this basis alone, his appeal must fail.

20.  In any event, the applicant’s appeal is doomed to fail.  In the present case, the applicant’s request to make a subsequent claim was filed to the Director about one month after the Court of Final Appeal refused to grant him leave to appeal in his previous application.  Despite a previous unsuccessful application conclusively determined by the Court of Final Appeal, the applicant attempted to re-litigate his case by bringing a second application for leave to judicial review based on essentially the same facts and basis.  This amounts to an abuse of process and the Deputy Judge rightly dismissed the applicant’s second leave application in the Leave Decision: Bepary Shahealom, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].

21.  We have further reviewed the Leave Decision and the Director’s 2^nd Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Leave Decision.

22.  As also mentioned earlier, the applicant has not sought to challenge the RPO in his Notice of Appeal.  However, even if the applicant has done so, we are satisfied that the RPO made by the Deputy Judge was correctly made, and there is no proper ground to challenge the RPO.

23.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.