ENOGIERU STANLEY v. DIRECTOR OF IMMIGRATION

HCAL 181/2022

[2022] HKCFI 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 181 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 oral submissions by the Applicant 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 29 December 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1815 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.  At the hearing, the applicant submitted that he had applied to the Legal Aid Department for assistance. However, the Court has not received any notice from the Director of Legal Aid Department and the applicant said he did not have the registration card from the Legal Aid Department with him. Usually, the matter has to be stayed automatically for 42 days pursuant to section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91, subject to the court’s discretion to order otherwise. Having considered the merit of the case and in the absence of evidence to prove his allegation, I decided to lift the automatic stay because I saw no merit in the applicant’s application as the applicant admitted himself that he had no good reason for his application.

The procedural history

4.  The applicant is an illegal immigrant from Nigeria. On 3 February 2010, he came to Hong Kong as a visitor and was permitted to stay until 16 February 2010. He overstayed. He surrendered to the Immigration Department on 7 February 2011. He raised torture claim with the Immigration Department by written signification dated 5 May 2011. 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.

5.  His claim was rejected by the Director by a Notice of Decision dated 24 June 2015 on Torture risk, BOR3 risk and Persecution risk. By Notice of Further Decision dated 4 November 2016, the Director reject his claim on BOR2 risk too.

6.  He appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 20 July 2018 (the “Board’s Decision”), the Board dismissed his appeal.

7.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 10 July 2020.

8.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 29 January 2021.

9.  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 24 March 2021.

10.  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 16 November 2021.

11.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 29 November 2021.

12.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

13.  The factual basis of his previous claim is that if refouled, he would be killed by members of a city social group in Nigeria who accused his late father of taking away from them a great deal of money and he was also in fear of Muslims in Gambia because he is a Christian.

14.  The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies was low as shown by the low frequency and intensity of ill-treatments from them and, given the nature, injuries sustained and medical treatments received, it was not accepted that the ill-treatments inflicted by his enemies on him had attained a minimum level of severity. Also, the dispute between the applicant and his enemies was a private matter without state involvement and state protection would be available to him. Internal relocation was an option open to him.

15.  He appealed the Director’s Decision to the Board. The Board disbelieved his factual evidence and agreed with the Director’s views on state protection and internal relocation option.

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 Director that his enemies were stilling looking for him. They had kidnapped his aged mother and tortured her to death for his information. It would be dangerous for him to return to Nigeria. His wife and children are in Hong Kong. They would have to return to Nigeria with him as well.

18.  The Director does not accept that there are new circumstances after the previous claim. The information above will not change his credibility, which had been rejected by the Board. His alleged fear had been considered in his previous claim and rejected. The Director considers that, coupled with the previous claim, there is no additional information, which will give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

19.  The applicant has filed an affidavit in support of his application. He said that the Director had dismissed his application without much consideration of his additional information on the facts of his case. Subsequent to his affidavit, he has sent in two letters to the Court respectively dated 28 March 2022 and 4 April 2022. In the former letter, he said that the officer at the detention centre asked him if he had obtained any paper from the High Court. He speculated that there should be something in the question by the officer. In the latter letter, he pointed out that on page 6 of the Director’s Decision, the immigration officer had made a mistake of his country as India. He considers that this is a mix-up, which should give him good reason for his application.

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 accepted the Director’s Decision and he had no good reason in support of his application.

22.  The applicant is unable to show any valid reasons to challenge the Director’s Decision. The officer’s question at the detention has no significance in this application insofar as this proceeding is concerned. As to the mistake of the name of his country, it is clearly a typo, which does not render the Director’s Decision defective in substance.

23.  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.

24.  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

25.  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.

26.  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.

27.  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.

28.  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.

29.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant said he accepted the court’s decision.

30.  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 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 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.

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