THING BIJAY v. DIRECTOR OF IMMIGRATION

HCAL 351/2022

[2022] HKCFI 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 351 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 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 apply for judicial review of the Decision of the Director of Immigration dated 25 April 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1586 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 Nepal by overstaying.  He was arrested by police on 29 october 2015 and was referred to the Immigration Department. He lodged non-refoulement claim by way of written representation on 9 November 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 26 October 2017.

5.  He appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 26 July 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 17 July 2019.

7.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 10 December 2019.

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 29 April 2020.

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 25 January 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 5 January 2022.

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 the Maoists because he switched his political allegiance from the Communist Party of Nepal (Maoists) to the Congress Party.

13.  The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies in Nepal was low as shown by the low intensity and frequency of past ill-treatments from them; that he was not the target of his enemies and his enemies did not have the intention of killing him; that his enemies should have no interest in him given the fact that they had stopped checking his whereabouts since January 2017; 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 and for the reasons given in the Board’s Decision, found that there were discrepancies in his evidence given to the Director and the Board and he had no explanation for such discrepancies. Consequently, the Board did not accept his factual evidence.

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 submitted to the Director that his enemies are still looking for him. They threatened to kill him. They had gone to his family in Nepal but they did not harm his family members. They threatened to kill the applicant when they see him. The Maoists will take revenge on him from the murder that happened in around 2013. He had produced documents to prove his story and the identity of his family members who had made the statements.

17.  The Director had considered the above information. The Director further considered that the issues were raised in his previous claim and had been rejected by the Director and the Board. Furthermore, the information was from his family members and is therefore hearsay information, which cannot be tested.

18.  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

19.  The applicant has filed an affirmation in support of his application. He enclosed a statement of grounds to Form 86 as follows:

a.  the Director had failed to appreciate or give proper weight to the presence of state acquiescence in his case;

b.  his life will be in danger if he returns to Nepal; and

c.  he considers that the Director was wrong in his Decision.

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 he does not want to stay in the detention centre.

22.  Those grounds in paragraph 19 are not valid reasons to challenge the Director’s Decision. Ground (a) is untenable because the Director had already found that there was no evidence to show that the Nepalese government had taken practical steps to monitor the conduct of Napalese police, see paragraph 18 of the Notice of Decision dated 26 October 2017. Grounds (b) and (c) are his opinions only without any evidence in support.

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

24.  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.

25.  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

26.  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.

27.  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.

28.  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.

29.  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.

30.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant said he had nothing to say.

31.  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 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 this 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 this 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

32.  The applicant’s application is dismissed.

33.  RPO in terms of paragraph 31 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