FAHAD SHAH v. DIRECTOR OF IMMIGRATION

HCAL 127/2022

[2022] HKCFI 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 127 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 15 November 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 639 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 Pakistan. He was arrested as an illegal immigrant by police on 14 May 2013.  He raised non-refoulement claim with the Immigration Department by written signification dated 15 May 2014 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 13 February 2017.

5.  He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 15 March 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 22 August 2019.

7.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 13 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 7 May 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 18 June 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 4 October 2021.

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 will be harmed or killed by the Taliban members since he supported the Awami National Party (“ANP”), Taliban’s rivalry.

13.  The Director found that his claim was not substantiated. He found that the risk of him being harmed or killed as he alleged, was low due to low frequency and intensity of ill-treatment from his enemies; that the incidents he alleged were only hearsay evidence; that state protection and internal relocation were available to him too.

14.  He appealed the Director’s Decision to the Board. The Board agreed with the Director’s views and further found that there was no evidence to show that the Taliban people were targeting members like the applicant. They targeted at the top level official of the ANP.

15.  Under section 37 ZO 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 said that the situation in his country is not improving. His uncle, a former member of legislative assembly of Pakistan and dozens of his party leaders were killed by Taliban terrorists. The police failed to provide protection to his party workers. The local Pakistan Taliban are killing the security official and young party workers. He had submitted newspaper cuttings to support his allegations.

17.  The Director does not accept that there are new circumstances after the previous claim, which considered together with his previous claim, will give him a realistic chance of success for his subsequent claim. The information above, even if true, do not constitute significant change of circumstances as they are the same enemies and for the same reasons in his previous claim, which had been considered by the Director and the Board. There was no evidence to show that his uncle’s death is related to him personally.

The application for leave to apply for judicial review

18.  The applicant has filed an affirmation in support of his application. He complains that the Director had paid no attention to his claim [subsequent claim].

19.  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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  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 was feeling dangerous and he wanted to stay in Hong Kong.

21.  The Director has given his reasons for his decision. The applicant is unable to show any valid reasons to challenge the Director’s Decision.

22.  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.

23.  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

24.  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.

25.  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.

26.  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.

27.  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.

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

29.  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

30.  The applicant’s application is dismissed.

31.  RPO in terms of paragraph 29 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