HIKMAT TULACHAN v. DIRECTOR OF IMMIGRATION

HCAL 859/2021

[2021] HKCFI 2394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 859 of 2021

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 Applicant:

THE APPLICATION

1.   This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 1 June 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 495 of 2017 (the “original 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 Nepal.  He raised non-refoulement claim with the Immigration Department on 22 October 2015 on the grounds of Torture risk under section 37U (1) of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bills of Right Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.   By the Director’s Decision dated 25 April 2016 and the Director’s Further Decision dated 18 May 2017, the Director rejected his claim on all the risks and he appealed to the Torture Claims Appeal Board. His appeal was dismissed by the Board’s Decision dated 26 July 2017 (the “Board’s Decision”).  

5.   He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 12 July 2018 (the “Court’s Order”).

6.   His appeal against the Court’s Order to the Court of Appeal was dismissed on 29 November 2019.

7.   His motion of appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 18 March 2019.

8.   His application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 5 August 2020.

9.   He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 27 October 2020.

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

The subsequent claim application

11.   The factual basis of his claim is that if he is refouled to Nepal, he will be accused of being the murderer or conspiring in the murder of a football player who had close tie with the Maoist and he would be harmed.

12.   The Director found that his claim was not substantiated as the level of risk of being harmed or killed if he returned to Nepal was assessed to be low; that his case did not have evidence in support but only his speculation; that state protection would be available to him and that internal relocation was an option open to him.

13.   The Board agreed with the Director and rejected his appeal.  It further found that his evidence was not credible.

14.   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.

15.   The applicant submitted that he could not return to Nepal as his enemy was still looking for him and they had become more powerful now.  He submitted a letter from Chairman of National Democratic Party of Magdi to support his case.

16.   The Director rejected his grounds.  The information was not change of circumstances after determination of his claim that would have reasonable prospect of success in his subsequent claim.

The application for leave to file judicial review application

17.   The applicant has filed an affirmation in support of his application, stating that the Director was wrong in his decision; that the Director did not give him sufficient time to prepare his case; that his duty lawyer did not render substantive service or advice for him; that relocation was not possible and state protection would not help him as he had no money.

18.   The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.   In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board [the Director].”

20.   The Director has assessed his evidence and came to his conclusion as he did in this case.  The Director is clearly entitled to come to such conclusion.  The applicant is relying on the same facts for his subsequent claim.  His grounds in support of his application do not assist him as they are opinions or comments without evidence in support of them.  Before me, he admitted that his subsequent claim was, in fact, his original claim.  He simply wanted to stay in Hong Kong.

21.   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.

22.   Since there is no reasonable prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The Restricted Proceedings Order

23.   In accordance with Practice Direction 11.3, RPO should be made under the following circumstances:

“8. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”

24.   As shown by the procedural history above, it is plain that the applicant refused to accept the unfavourable decisions made by the Director, the Board and the courts.  His reasons in support of his subsequent claim are clearly insufficient to overcome the reasons given by the Director and the Board in rejecting his claim.  He should be well aware of those reasons himself.

25.   The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his claim for a subsequent claim, categorically fitting in the description of

“the vexatious litigants typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.”^[1]

The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a restricted proceedings order (“RPO”) and the extended order against him.^[2]

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 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129.

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. The Court should take preventive measures against any abuse.

28.   For this reason, the Court has called upon the applicant to appear before it to show cause why a RPO should not be made against him.  The applicant has been explained the proposed RPO by the court interpreter outside this court before hearing.

29.   Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that 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 on the same facts 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, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to 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 designated Judge 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 designated Judge for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by 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 designated Judge, 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)  This order shall cease to have effect at the end of 5 years from the date of this order.

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

31.   The applicant’s application is dismissed.

32.   A 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

[1] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1, §48

[2] Ibid §§7 & 8