SAIDY LAMIN IA v. DIRECTOR OF IMMIGRATION

HCAL 78/2023

[2023] HKCFI 747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 78 of 2023

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 20 December 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 921 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 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 20 February 2023.

The procedural history

4.  The applicant is a national of Gambia. He arrived in Hong Kong on 27 July 2014 as a visitor and was allowed to stay until 25 October 2014. He overstayed. He surrendered to the Immigration Department on 27 October 2014. On 10 November 2014, he lodged a non-refoulement claim on Torture risk, Part VIIC of the Immigration Ordinance, Cap. 152 (“the Ordinance”), BOR 2 risk, BOR 3 risk and Persecution risk.

5.  By Notice of Decision dated 25 May 2017, the Director rejected his claim for the reason that they were not substantiated.

6.  The applicant appealed the Director’s Decisions to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 10 October 2017 (the “Board’s Decision”).

7.  His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance by its Order dated 19 May 2020 (“the Court’s Order”).

8.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 1 November 2021.

9.  His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 8 December 2021.

10.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 2 August 2022.

11.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 18 October 2022.

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

The subsequent claim application

13.  The applicant’s previous claim is on the basis that, if refouled, he would be harmed or killed by government secret agents as a result of his openly criticizing the actions of the government when several death row prisons were executed. In addition, he claimed that his brother threatened to kill him after he had misused his brother’s funds.

14.  The Director found that his previous claim was not substantiated and refused his claim.

15.  The applicant appealed to the Board. The Board considered the applicant’s evidence and found serious credibility concerns regarding his claims about his previous political involvement. The Board was not satisfied that there was a real chance, risk, or any substantial grounds for believing that his brother would attempt to harm him.

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.  The applicant submitted to the immigration officer his statement and some supporting documents taken from different internet sources for his subsequent claim application. Having considered the evidence, the Director found that he relied upon the same threats from the Gambian government and his fear of being killed by Buba because of money dispute with him remain unchanged; that these issues had been considered in his previous claim; that the dispute between him and his siblings was not raised in his previous claim and even if it is true, he will have state protection and internal relocation is a viable option. With regard to the internet information, the Director found that they are not relevant to the applicant personally and his concern about being ill-treated and persecuted by the Gambian government for his political opinions, even taking into account that there has been a change of regime in Gambia, had been duly considered in his previous claim. The Director found that his concern that the Gambian government cannot provide him with state protection and the government’s secret agents are still interested in him is only his speculation.

18.  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

19.  The applicant has filed an affirmation in support of his application. In his affirmation, he said that the Director did not consider his claim properly.

DISCUSSION

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 that because of the change of the leadership of Gambia, though the regime remained the same, it should be taken a change of circumstances. He agreed that his enemies remain the same. He asked the Court to review the Director’s Decision. He attempted to submit the internet documents to Court for consideration. He said that those documents had been given to the immigration officer for consideration. He wanted the Court to re-consider those documents in order to see if the Director is correct in his Decision. He intended to keep the documents himself. The Court refused to accept the documents as it had explained to the applicant that it has no power to make investigation into the facts of his case. If the immigration officer had considered the documents, it is for him to make findings on those documents. The Court will review the Director’s Decision based upon the applicable legal principles.

22.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

23.  The Director has given his reasons in support of the Director’s Decision. That the applicant insisted that the change of leadership of the government amounts to change of circumstances is only his own personal opinion. He agreed that his enemies are the same enemies in his previous claim. There is no realistic prospect of success in his subsequent claim and I dismiss his application.

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. Upon my enquiry of what comments he had on the intended RPO, he said he wants the Court to review his case.

28.  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

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