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HCAL 1137/2022
[2023] HKCFI 186
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1137 of 2022
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BETWEEN
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Chukwuemeka Ndubisi Anthony |
Applicant |
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and |
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Director of Immigration |
Putative |
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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 26 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1727 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 24 November 2022.
The procedural history
4. The applicant is a Nigerian national. He came to Hong Kong on 16 October 2015 as a visitor and was permitted to stay until 30 October 2015. He overstayed and was arrested by police on 4 February 2016. He was referred to the Immigration Department. He lodged his non-refoulement claim on 15 April 2016 on 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 September 2016 (“the Director’s First Decision”) and Notice of Further Decision dated 5 June 2017 (“the Director’s Second Decision”), the Director refused his claim.
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 24 October 2017 (the “Board’s Decision”).
7. He applied for leave for judicial review of the Board’s Decision and his application was dismissed by the Court of the First Instance on 21 May 2020 (“the Court’s Order”).
8. His application for appeal against the Court’s Order was dismissed by the Court of Appeal on 13 May 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 23 July 2021.
10. His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 14 March 2022.
11. He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 27 June 2022.
12. By the Director’s Decision, the Director refused his application.
The subsequent claim application
13. In the applicant’s previous claim, he claimed that if he returned to Nigeria, he feared that he would be harmed or even killed by his parental uncle, Lawrence Gimika, who was a member of the People’s Democratic Party and the Secretary of the Indigenous People of Biatra because he was unable to pay back his money. In addition, he alleged that it would be difficult for a Christian like himself to survive because the President Buhari was a Muslim and there were unprovoked attacks from radical Muslims, gangs and mobs in Nigeria.
14. The Director found that his previous claim was not substantiated.
15. He appealed the Director’s First Decision to the Board. The Board considered the evidence. The Adjudicator had doubts whether the applicant was telling him the truth. The Adjudicator found that the applicant was not of a truthful witness and that no credence could be attached to any of his claims.
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 a statement, in which he stated that he is currently in fear of being harmed or killed by (a) Lawrence Ginka, who is now aligned with the groups of Fulani herdsmen and Ebubeagu, and his people, (b) Muslims in Nigeria and ( c) the Nigerian Government if he returns to Nigeria.
18. The Director considered the evidence and found that his evidence was hearsay evidence from his friend, on which the Director does not attach much weight; that there is no evidence to show that Lawrence Ginka was related to the killing of the youths in Nigeria; that the documentary evidence only showed killings of the people, but there is no evidence to show that the applicant is personally at risk. His allegations of fear of being harmed by Lawrence and the Muslim government had been considered in the previous claim and were rejected by the Director and the Board.
19. The Director therefore found that the applicant relies upon the facts, which had been raised in his previous claim to support his subsequent claim and such facts, which bear no credibility 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 said that he still maintains that his life will be in danger if he returns to his country.
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 agreed that he relies on the facts of his previous claim in support of his subsequent claim. He further alleged that the Director did not consider his documents and make research into the facts. He agreed that his uncle is still his enemy.
24. The applicant is clearly relying upon the same or similar facts of his previous claim in support of his subsequent claim. The above reasons are not valid reasons to challenge the Director’s Decision.
25. 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 on the intended RPO, he said he does not want to go back and his uncle is his main enemy.
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 19th day of January 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court
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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 19 January 2023
Chukwuemeka Ndubisi Anthony
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 19 January 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26079) in ImmD RA 7/37/C
(Formerly RBCZ/11420/16 and RBCZ 9001915/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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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