SECLEN BRICENO FELIX BRAYAR v. DIRECTOR OF IMMIGRATION

HCAL 901/2023

[2023] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 901 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 Applicant being absent 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 May 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1736 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 was absent without prior notice to the Court on the hearing date of 11 July 2023. He is deemed to have waived his right to be heard and his application is to be dealt with on paper.

The procedural history

4.  The applicant is a national of Peru. He came to Hong Kong as a visitor on 6 June 2010 and was permitted to remain until 6 July 2010. On 19 June 2010 he was arrested by the Food and Environmental Hygiene Department officer for breach of condition of stay, for which he was convicted and sentenced to 2 months’ imprisonment on 15 July 2010. On 21 June 2010, he lodged his non-refoulement claim on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, the 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 31 October 2017 on all applicable grounds of his claim.

6.  He appealed to the Torture Claims Board (the “Board”). By Decision dated 17 August 2018, the Board dismissed his appeal.

7.  He applied for leave for judicial review of the Board’s Decision and failed. He then appealed to the appellate courts up to the Court of Final Appeal.

8.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 6 June 2022.

9.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 28 December 2022.

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

The subsequent claim application

11.  The factual basis of his previous claim is that if he is refouled, he would be harmed or killed by the family members of Rojas Perez Balerio (Rojas) because they suspected that his father was related to the disappearance of Rojas and he also had left the Tupac Amaru Revolutionary Movement (MRTA).

12.  The Director found that his previous claim was not substantiated. He appealed to the Board.

13.  Having considered his evidence, the Board found that even if the applicant’s account of fact was true, there was no evidence on which it could find that there was a risk to him from the Rojas family or the MRTA if he returned to Peru.

14.  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 realist prospect of success.

15.  In support of his application, the applicant had submitted his statement and copies of police certificate, police record, police verbal reports, court certificate and government report to the immigration officer. Having considered the evidence, the immigration officer concluded:

“25. … Having considered your circumstances as the COI, both the Board and the Case Officer held that internal relocation alternatives were available and reasonable to you…. Given no new substantial evidence from your Request which could refute these important factors, it is considered that your current alleged risk of harm, if any, does not amount to a significant change of circumstances since your claim was finally determined.”

16.  The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

17.  The applicant has filed an affirmation in support of his application, in which he attached the Director’s Decision without stating any specific ground.

Discussion

18.  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).

19.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  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

21.  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.

22.  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 Direcctor 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.

23.  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.

24.  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 was absent at the hearing. There was no submission from the applicant on the issue of RPO.

25.  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 the 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 her 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 Court.

(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

26.  The applicant’s application is dismissed.

27.  RPO in terms of paragraph 25 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