HOSSAIN SARFARAJ v. DIRECTOR OF IMMIGRATION

HCAL 843/2021

[2021] HKCFI 2644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 843 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 apply 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 769 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 India. He had raised non-refoulement claim with the Immigration Department on 1 April 2015 on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance.

4.  His claim was rejected by the Director by Notice of Decision dated 16 May 2017.

5.  He appealed to the Torture Claims Appeal Board (“the Board”).  By its Decision dated 3 October 2017, the Board rejected his appeal.

6.  He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 10 August 2018.

7.  He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed on 10 December 2018.

8.  He applied by notice of motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 4 April 2019.

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 18 March 2020.

10.  He applied to the Director for subsequent claim by letter dated 1 June 2020 and was rejected by the Director’s Decision.

The subsequent claim application

11.  The factual basis of his original claim is that if he is refouled, he will be harmed or killed by his business partner, Munna who has a close connection the All India Trinamool Congress.

12.  The Director found that the level of risk of him being harmed or killed by Munna if he returned to India was assessed to the low because it was only a private dispute between them; that reasonable state protection would be available to him and that internal relocation was an option open to him.

13.  The Board affirmed the Director’s Decision.  The Board further found that his story was only a fabrication as there was no evidence to show that Munna would be able to locate him in India.  Therefore, internal relocation was an option open to him.

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 or withdrawn 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 relies upon the facts that his friend in India was once kidnapped by Munna and taken to a place where he was assaulted for information of his whereabouts.  His parents also told him that Munna had taken some people to his family’s house in India enquiring his whereabouts.

16.  The immigration officer has considered his circumstances and disagrees that those are the changed circumstances since his original claim was finally determined.  This means he is re-litigating his original claim.  She further found that even if the incidents, which took place after determination of his original claim were change of circumstances, which she denies, they would not be change of circumstances, which taken together with his original claim, will give him a realistic prospect of success of his subsequent claim.

The application for leave to apply for judicial review of the Director’s Decision

17.  The applicant has filed an affirmation in support of his application, stating that his case is a genuine case for non-refoulement.  He considers that the Director was wrong to have reached her decision without proper enquiry.  He invited the Director to go to India to see the situation himself.

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

19.  The Director is entitled to reach his conclusion after considering his evidence as he did in this case.  The applicant has raised no valid challenge to the Director’s Decision or finding of the fact.

20.  It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.  According to the Director, the incidents after the determination of the original claim are the continuation of the facts in the original claim.  I agree.  His suggestion for the Director to go to his country to look for himself is unreasonable and unnecessary.  The burden is on him to prove his case to the Director, who is entitled to rely upon the country of origin information to understand the situations in India.

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 RPO

23.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his 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.

24.  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.

25.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and 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.

26.  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.

27.  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.

28.  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, 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

29.  The applicant’s application is dismissed.

30.  RPO in terms of paragraph 28 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