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CACV 590/2021
[2022] HKCA 521
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 590 OF 2021
(ON APPEAL FROM HCAL 1527 OF 2021)
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MD TANVIR |
Applicant |
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DIRECTOR OF IMMIGRATION |
Putative Respondent |
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Before: Hon Chow JA and Wong J in Court
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 14 December 2021 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 28 October 2021.
2. The Applicant has not filed any skeleton argument in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter to the Applicant dated 17 February 2022. Accordingly, the Applicant is deemed to have waived his right for an oral hearing and elected to have his appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 4 of the said letter.
BACKGROUND
3. The Applicant is a national of India. He arrived in Hong Kong on 9 April 2016 and was given permission to remain as a visitor up to 23 April 2016. The Applicant did not depart from Hong Kong upon the expiry of his limit of stay, but overstayed. On 26 April 2016, he surrendered to the Immigration Department and raised a non-refoulement claim.
4. The Applicant claimed that if refouled to India, there was a risk that he would be harmed or killed by his creditors over his outstanding debts.
5. The Applicant’s non-refoulement claim was dismissed by the Director by his decision dated 23 January 2017 (“the Director’s First Decision”) on all applicable grounds: torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The Applicant appealed the Director’s First Decision to the Torture Claims Appeal Board (“the Board”). On 20 April 2018, the Board dismissed the appeal and confirmed the Director’s First Decision. The Applicant sought leave to apply for judicial review of the Board’s decision. That application was refused by Deputy High Court Judge Josiah Lam on 18 March 2019. The Applicant then lodged an appeal against the decision of Deputy High Court Judge Josiah Lam to the Court of Appeal. On 1 August 2019, the Court of Appeal dismissed the appeal. The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was dismissed by the Court of Appeal on 28 May 2020 and by the Appeal Committee of the Court of Final Appeal on 1 June 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.
7. On 7 June 2021, the Applicant requested to make a subsequent non-refoulement claim on the basis that he had been informed by his family in India that his creditors were still looking for him everywhere and had also made threats against his family, and he still feared that he would be killed if refouled to his home country.
8. On 21 June 2021 the Director asked the Applicant to provide further information and evidence in writing in support of his request, which the Applicant subsequently provided.
9. By a Notice of Decision dated 28 October 2021 (“the Director’s Further Decision”), the Director refused to allow the Applicant to make a subsequent claim because it was essentially the same as his previous claim. The Director considered that the Applicant had failed to meet the requirement as stipulated by Section 37ZO(2) of the Immigration Ordinance, and had failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success.
10. On 4 November 2021, the Applicant filed a Form 86 and supporting affirmation seeking leave to apply for judicial review of the Director’s Further Decision (see Form CALL-1 at §13).
THE JUDGE’S DECISION
11. In his decision dated 14 December 2021, the Judge observed that the Applicant did not provide any grounds for seeking relief in either his Form 86 or his supporting affirmation filed on the same day for his intended challenge to the Director’s Further Decision, nor was the Applicant able to do so at the hearing of his application other than just repeating his claim that his problem still existed in his home country and he could not return to his home country.
12. The Judge, having considered the Director’s Further Decision with rigorous examination and anxious scrutiny, did not find any error of law or procedural unfairness in his decision or any failure on the part of the Director to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim. The Judge was not satisfied that there was any prospect of success in the Applicant’s intended application for judicial review. Accordingly, the Judge refused the Applicant’s leave application (see Form CALL-1 at §14).
13. 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 1 June 2021, and 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 before, the Judge held that the Applicant’s conduct amounted to an abuse of process (see Form CALL-1 at §§15-19).
14. Accordingly, the Judge made a restricted proceedings order (“the RPO”) against the Applicant, such that he 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 of the court under paragraph (2) of the RPO.
THIS APPEAL
15. In his Notice of Appeal dated 28 December 2021, the Applicant does not put forward any proper ground of appeal against the Judge’s order refusing to grant leave to apply for judicial review. He merely states that “the High Court did not find any error of Director of Immigration. I want to show the error.” There is no appeal against the RPO.
DISCUSSION
16. 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
17. The Applicant has not pointed to any specific errors in the Judge’s decision, or raised any viable grounds of appeal against the Judge’s decision refusing to grant leave to apply for judicial review.
18. As earlier mentioned, the Applicant has not sought to challenge the RPO in his Notice of Appeal. In any event, even if the Applicant has done so, we are satisfied that the RPO made by the Judge was correctly made, and there is no proper ground to challenge the RPO.
19. In all, the Applicant’s appeal has no merit, and is dismissed.
(Anderson Chow)
Justice of Appeal
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(Albert Wong)
Judge of the Court of
First Instance
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The Applicant, unrepresented
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
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