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HCAL 487/2023
[2023] HKCFI 1722
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 487 of 2023
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BETWEEN
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Gaitan Hernandez Ardul |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 10 March 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2949 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 26 April 2023.
The procedural history
4. The applicant is a national of Colombia. He came to Hong Kong on 16 October 2014 and was permitted to stay as a visitor until 14 January 2015. However, he overstayed since 15 January 2015. On 9 June 2015, he was arrested by police for possession of a dangerous drug and for breach of condition to stay. On 11 July 2015, he lodged his non-refoulement claim on grounds of Torture risk[1], the BOR 3 risk[2], the Persecution risk[3] and the BOR 2 risk[4].
5. By Notice of Decision dated 26 October 2015, the Director refused his claim on the Torture risk, the BOR 3 risk and the Persecution risk.
6. By Notice of Further Decision dated 5 January 2017, the Director refused his claim on the BOR 2 risk.
7. His appeal of the Director’s Notice of Decision and Notice of Further Decision to the Board was dismissed by the Board’s Decision on 23 July 2018.
8. His application to the Court of the First Instance for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 27 July 2021.
9. His appeal against the Court of Appeal’s sanction under its “Unless Order” was refused by the Court of Appeal by its made on 23 December 2021 (“the Court’s Order”).
10. His Notice of Motion for leave to appeal against the Court’s Order to the Court of Final Appeal was dismissed by the Court of Appeal on 25 January 2022.
11. His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 9 December 2022.
12. He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 29 December 2022.
13. By the Director’s Decision, the Director refused his application.
The subsequent claim application
14. The applicant’s previous claim was based on his allegations that if he returned to Colombia, he would be harmed or killed by Cordillera gangsters because he owed a debt to one of its members and he also refused to join Cordillera.
15. The Director found that his previous claim was not substantiated.
16. The applicant’s appeal to the Board against the Director’s decision was dismissed for the reasons that the applicant had failed to show that he was under a real risk of being harmed or killed by the Cordillera gangsters; that state protection and internal relocation would be available to him.
17. 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.
18. For his application for his subsequently claim, the applicant had submitted additional materials through his legal representative to the immigration officer. He had also submitted a witness statement and news article to the immigration officer. Having considered the additional materials, the immigration officer is of the view that the applicant relies on the same story of his previous claim in support of his subsequent claim, which when considered together with his previous clam, would not give him a reasonable chance of success for his subsequent claim. The Director therefore dismissed the applicant’s subsequent claim application.
The application for leave to apply for judicial review
19. The applicant filed Form 86 on 28 March 2023 for judicial review of the Director’s Decision. The applicant has filed an affirmation in which he said that the Director had considered the country of origin information, which are not recognized, outdated or simply hearsay and which had caused the Director to find that he is safe to return to his country.
DISCUSSION
20. 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).
21. 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 agreed that he had relied on the same story in his previous claim for his subsequent claim application.
22. 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.”
23. The reasons stated in his affirmation fall apart as he had admitted in court that he relied on the same facts in his previous claim in support of his present application. Under the circumstances, his application is an abuse of the process. The Director is right to make his decision.
24. Therefore, 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 asked the Court to review his case as he could not return to Colombia and he had nothing further to say.
30. 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.
Dated the 3rd day of July 2023
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 3/7/2023
Gaitan Hernandez Ardul
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/7/2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26982) in ImmD RA 7/37/C (formerly RBCZ/411/15 & RBCZ/9001187/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”).
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