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HCAL 1224/2022
[2023] HKCFI 223
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1224 of 2022
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Manuel Rafael Jr. Kalaw,
also known as Pafael K Manuel Jr |
Applicant |
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Director of Immigration |
Putative 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 October 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2623 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 5 December 2022.
The procedural history
4. The applicant is a Filipino national. He came to Hong Kong as a visitor in May 2004. He overstayed and was arrested by police on 9 June 2014. He lodged his non-refoulement claim with the Immigration Department by a written signification dated 25 September 2014 on the applicable grounds of the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].
5. By Notice of Decision dated 9 March 2017, the Director refused his claim on all applicable risks.
6. The applicant appealed to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 30 October 2018 (the “Board’s Decision”).
7. His application to appeal for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance by its Order dated 3 June 2021 (“the Court’s Order”)
8. His appeal against the Court’s Order was dismissed by the Court of Appeal on 12 October 2021.
9. His application for leave to appeal to the Court of Final Appeal by way of Notice of Motion was dismissed by the Court of Appeal on 18 November 2021.
10. His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 27 June 2022.
11. He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 3 August 2022.
12. By the Director’s Decision, the Director refused his application.
The subsequent claim application
13. The applicant’s previous claim was based on the fact that, if refouled, he would be harmed or killed by the loan shark because of his default in the loan repayment.
14. The Director found that his previous claim was not substantiated.
15. He appealed to the Board. By the Board’s Decision, the Board rejected his appeal. The Board gave its reasons and concluded at paragraph 62 of its Decision:
“It is not possible to reconcile the Appellant’s testimony and the evidence in his NCF [Non-refoulement Claim Form], and on occasion his testimony was internally inconsistent. The Appellant indicated that he was confused and I do not find his NCF or testimony reliable. Based on Kaja, I am not willing to attach any credence to evidence regarding the loan payments, the method of payment, phone calls from the loan sharks or threats by them….”
16. 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.
17. In support of his subsequent claim, he submitted to the immigration officer additional information. He maintains that the loan shark, from whom he had borrowed money and defaulted payment, will harm or kill him if he returns to the Philippines. He had information from his friend in the Philippines that his father was shot dead. He was threatened by a phone call from someone that he will be killed if he returns to the Philippines without repaying the loan. He considered that the police in the Philippines are corrupt and they cannot provide him with protection. The loan shark is also very powerful and he will be located if he returns to the Philippines. He has also submitted new articles which reported that people were killed or kidnapped by the loan sharks in the Philippines.
18. The Director is of the view that the information from his friend is hearsay evidence which cannot be verified. Also, the reasons for his father’s death are not known and may not be related to his loan. The evidence show that the loan shark is only interested in repayment of the loan without any intention of harming or killing him. State protection and relocation issues had been considered by the Board in his previous claim and his allegations were rejected. Those news articles do not assist the applicant’s case as they cannot prove the applicant’s personal risk if he returns to the Philippines.
19. The Director therefore found that the applicant relies upon the facts, which when considered together with his previous claim, will not give him a realistic chance of success in his subsequent claim. The Director dismissed the applicant’s subsequent claim application.
The application for leave to apply for judicial review
20. The applicant has filed an affidavit in support of his application, in which he stated that the Director failed to recognize the telephone threat he received from the creditor in Hong Kong and that state protection will not be available to him.
DISCUSSION
21. 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).
22. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
23. Before me, the applicant said that he understands the meaning of abuse of the process.
24. The complaints on his statement attached to his affidavit had been considered by the Director. See Paragraphs 12-14 of the Director’s Decision. For the reasons given, the Director rejected his complaints. I find that the issues raised by the applicant before are not valid reasons to challenge the Director’s Decision.
25. There is no valid reason to challenge the Director’s Decision. 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
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. Upon my enquiry of what comments he had on the intended RPO, he asked the Court to consider his application.
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 27th day of January 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court |
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 27 January 2023
Manuel Rafael Jr. Kalaw, also known as Pafael K Manuel Jr
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 27 January 2023
Director of Immigration
Putative Respondent’s ref. no
L/M (26287) in ImmD RA 7/37/C
(Formerly RBCZ/3002002/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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 of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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