RE RANA MOHAMMAD MASUD

HCAL 1165/2021

[2022] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1165 OF 2021

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant remaining in Hong Kong without the Director’s permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decisions (the “Board’s Decisions”), rejected his appeal and affirmed the Director’s Decisions.

2.  He applied to the High Court for leave to apply for judicial review of the Board’s Decision. His application failed before the Court of the First Instance. He appealed to the Court of Appeal, which dismissed his appeal. He pursued the matter further to the Court of Final Appeal, which dismissed his application for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal.

3.  He then made an application to the Director for a subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”). The Director dismissed his application and he applied to the High Court for judicial review of the Director’s decision.

4.  By Form CALL-1 dated 20 September 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review. The Court had also made a Restrictive Proceedings Order (RPO) prohibiting him from taking further legal proceedings in the High Court relating to any non-refoulement claim without leave of the Court of the First Instance.

5.  On 29 September 2021, the applicant applied for leave to appeal the Court’s decision to the Court of Appeal.

6.  The Court considered that there is uncertainty as to whether the Court of the First Instance has the power to restrict the right of appeal to the Court of Appeal. Ribeiro PJ in Ng Yat Chi v Max Share Ltd & Another (2005) 8 HKCFAR 1, said at [132] that the power to prevent abuse of the appellate process should be exercised by the Court of Appeal.

7.  By a letter dated 5 January 2022, the Court granted leave to the applicant to file the notice of appeal with the Registry of Civil Appeals within 14 days of the Order.

8.  The Court of Appeal in Siti Khotimah v Director of Immigration and Reza Shahin v Director of Immigration [2022] HKCA 327, having reviewed the legal position of the law and the Court of Final Appeal’s decision, held:

“43. In our view, if he sees fit, a CFI judge has the power to require the litigant concerned to obtain leave from him first before appealing against the restrictive order itself. And if he refuses to grant leave to appeal, his decision is final. Otherwise, the litigant will most probably take the restrictive order to the Court of Appeal, thereby continuing his abuse of the appellate process.

44. The judge’s decision made under the restrictive order refusing the litigant leave to appeal against the order or judgment made in the underlying proceedings is also final. …”

9.  Since the applicant has failed to file his notice of appeal within the time of the Order, he has to ask for leave to file his notice of appeal out of time.

10.  In his letter attached to his application, he set out the following grounds.

(i)  The Court’s decision is substantially unfair.

(ii)  He has no legal representation to assist his application.

(iii)  He has the right to access to justice.

(iv)  The Director should consider his case afresh and to re-screen his application.

(v)  The Court failed to carry out research into the updated country of origin information (“COI”).

(vi)  The issue of Omicron COVID-19 is prevalent in Bangladesh.

(vii)  His enemy is still looking for him and they had threatened to kill him.

(viii)  The updated COI for the court’s consideration.

Discussion

11.  Pursuant to Order 32, rule 11 and 11A of the RHC[1], having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

12.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the case.

13.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

14.  The issues for discussion is whether the applicant has valid grounds to challenge the Court’s decision on the refusal of leave for him to apply for judicial review of the Director’s Decision and the imposition of the RPO on him.

15.  The grounds in paragraph 10 above are not valid reasons to challenge the Director’s Decision or the Court’s decision. Ground (1) is only his bare allegation without any evidence in support; ground (2) is not valid as he is not entitled to free legal representation at all stages of the proceeding, not least his subsequent claim, which is in fact an abuse of the court’s process; ground (4) is only his opinion and the procedure under the Ordinance does not provide screening for the subsequent claim; ground (5) is misconceived as the Court has no power to make investigation into the facts of his case; ground (6) has not merits as the virus problem is a worldwide problem, not confined to Bangladesh; ground (7) had been considered by the Director and the Board in the previous claim and finally ground (8) is irrelevant as the COI set out cannot be verified and has no weight in the consideration of the application.

16.  The applicant is unable to raise any valid ground to point out any error on the part of the Court in the assessment of his application for leave to apply for judicial review of the Director’s Decision. The applicant also has not been able to refute the Director’s finding that he was relying the same facts in his previous claim for his subsequent claim application. He is therefore abusing the court’s process. The RPO order should remain.

17.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and further by virtue of the RPO, I dismiss his application.