MOHAMMAD FIROJ AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 1754/2021

[2022] HKCFI 2033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1754 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 oral submissions by the Applicants in open court;

1.      Leave to apply for Judicial Review be refused; and

2.      A Restricted Proceedings Order (RPO) be made against the applicants.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant is the father, the 2^nd applicant is the mother and the 3^rd and the 4^th applicants are the daughters, aged 17 and 16 respectively. This is their joint application for leave to apply for judicial review of the Decision of the Director of Immigration dated 14 December 2021 (the “Director’s Decision”) refusing their subsequent claim of HCAL 232 of 2017 (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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.

3.  The 1^st applicant represented the other applicants who were present before the Court. The 1^st applicant confirmed that he had received a letter from the Court advising him to seek legal representation because there are minors. He had applied to the Director of Legal Aid for assistance, but was refused.

The procedural history

4.  The applicants are illegal immigrants from India for remaining in Hong Kong without permission. The 1^st applicant came to Hong Kong in March 2008. He overstayed and committed crimes in Hong Kong. He was sentenced to imprisonment. The 2^nd applicant, 3^rd applicant and 4^th applicant came to Hong Kong in April 2014. They overstayed. The 1^st applicant and the other applicants lodged non-refoulement with the Immigration Department and their applications were 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.

5.  Their claim on Torture risk, BOR 3 risk and Persecution risk were rejected by the Director by a Notice of Decision dated 24 December 2015. Their claim on BOR 2 risk was rejected by the Director by a Notice of Further Decision dated 15 February 2017.

6.  They appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 21 April 2017 (the “Board’s Decision”), the Board dismissed their appeal.

7.  They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 22 January 2018.

8.  Their application for appeal against the Court’s decision was refused by the Court on 13 August 2019.

9.  Their application for extension of time to appeal before the Court of Appeal was dismissed by the Court of Appeal on 10 January 2020.

10.  Their 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 22 April 2020.

11.  Their 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 19 August 2021.

12.  They applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 15 September 2021.

13.  By the Director’s Decision, the Director refused their application.

The subsequent claim application

14.  As this is the family’s joint application, the family relied upon the 1^st applicant’s facts. The factual basis of the 1^st applicant’s previous claim is that if refouled, he would be harmed or killed by creditor, Amin because he had defaulted on his loan repayments. Amin was a member of the Communist Party of India-Marxist (the “CPIM”) in Kolkata, wealthy, famous and popular in the locality.

15.  The Director found that his claim was not substantiated. He found that the risk of him and his family being harmed by his enemies in India was low as shown by the low intensity and frequency of past ill-treatments from them; that his enemies did not have the intention of killing them; that the state was no involved and state protection would be available to them and that internal relocation was a viable alternative.

16.  On behalf of himself and his family, he appealed the Director’s Decision to the Board. Before the Board, the children were absent. The Board, having considered the evidence, found that he and his wife, the 2^nd applicant were dishonest and unreliable. The Board found no basis to support the family claim. It also found that internal relocation was a viable alternative for the family.

17.  Under section 37ZO of the Ordinance, the applicants have 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.  In support of their subsequent claim, the 1^st applicant submitted to the Director that he had information from his brother in India that Amin had come to his native home and looked for him regularly. Amin has switched to support the All India Trinamool Congress, the ruling party and has become Member of Legislative Assembly of Kolkata Port. However, the information is hearsay material, which cannot be verified. There is no evidence that his wife was injured in 2014 by Amin and his people. Nor is there any evidence to show that his two daughters will be in danger, if refouled.

19.  The Director found that the applicants rely upon the same or similar facts in support of their subsequent claim, such facts, when considered together with their previous claim, will not give them a realistic chance of success in their subsequent claim. He dismissed the applicants’ subsequent claim application.

The application for leave to apply for judicial review

20.  On behalf of himself and other applicants, the 1^st applicant has filed an affirmation in support of their application. He enclosed a copy of the Director’s Decision without setting out any specific ground.

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. Before me, the 1^st applicant, on behalf of himself and other applicants, said he had received a letter from the Court advising him to seek legal representation for his children. He had applied to the Director of Legal Aid and his application was refused. He further said he understood the Director’s reasons rejecting their application. If the Director was right in his decision, he had nothing to say.

23.  I note that there are two minors in this case and they were not legally represented before the Director or this Court. Their case was considered by the Director as a composite subsequent claim without separate consideration of the child specific issues. However, since their cases rely upon the facts of the 1^st applicant, whose evidence was rejected by the Director. I also do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 3^rd and 4^th applicants but had not been advanced to the Director or considered by him because of the lack of legal representation before the Director. In Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77, §21, the Court of Appeal held that it is correct not to grand leave to the 3^rd and 4^th applicants to apply for judicial review of the Director’s Decision under certain conditions. The Court of Appeal in that case said:

“21. In the present case, the 2nd and 3rd Applicants’ claims were premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2nd and/or 3rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.”

24.  Those conditions in the Court of Appeal case apply to this case. The applicants were legally represented at the screening stage before the Director. They did not raise any child specific issue for the Director. They were advised by the Court of the minors in this case. However, they have not raised any child specific issue for their application. The Board had considered their case and found that there was no basis in support of their claim.

25.  The 1st applicant is unable to show any valid reason to challenge the Director’s Decision.

26.  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.

27.  Since there is no realistic prospect of success in their subsequent claim, I dismiss their application for leave to apply for judicial review of the Director’s Decision, treating the lack of legal representation before the Court as a procedural irregularity under Order 2, rule 2 of the RHC.

The RPO

28.  The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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.

29.  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.

30.  In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

31.  For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against them. The 1^st applicant represented the other applicants. He has been explained the proposed restricted proceedings order before this hearing.

32.  Upon being requested to show cause why the Court should not make the RPO against them, the 1^st applicant said he understood.

33.  Having considered the 1^st applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicants 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. The reference to the Applicant will cover the 1^st applicant and the other applicants or anyone of them in this case.

(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

34.  The applicants’ application is dismissed.

35.  RPO in terms of paragraph 33 be made against the applicants.

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