SK ASKAR ALI v. DIRECTOR OF IMMIGRATION

HCAL 913/2021

[2021] HKCFI 2936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 913 OF 2021

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D E C I S I O N

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A.   Introduction

1.  By his Decision dated 4 August 2021 [2021] HKCFI 2214, DHCJ KW Lung made, amongst others, the following orders:

(1)  an order dismissing the Applicant’s application for leave to apply for judicial review in these proceedings; and

(2)  a restrictive proceedings order (“RPO”), prohibiting the Applicant from commencing or continuing any legal proceedings relating to a non-refoulement claim by the Applicant in the High Court, without leave of the Court of First Instance.

2.  By Notice of Appeal in CACV 382/2021 lodged on 11 August 2021, and in breach of the RPO, the Applicant sought to appeal to the Court of Appeal from the Deputy Judge’s refusal of leave to apply for judicial review.

3.  The breach having been brought to his attention by the Court, the Applicant was given until 23 September 2021 to make any appropriate application under RHC Order 32A rule 2.

4.  By letters dated 15 and 21 September 2021, the Applicant seeks leave to pursue the appeal.  Though the form of the application may not be fully compliant with the rules, I am prepared to treat it as being made for an order that, notwithstanding the RPO, the Applicant should have permission to pursue the appeal in CACV 382/2021.

5.  Under the terms of the RPO, the Applicant was to give at least seven days’ notice in writing to each intended defendant or respondent of his intention to make the application, and to enclose with the application any response received.  Notice was apparently given on 7 September 2021, but no response was included with the application.

6.  Further, any intended defendant or respondent having notice of this application is entitled, but under no obligation, to place before the Court written representations about the application.  As at the date of this Decision, no written representations have been received.  None are needed.

7.  In accordance with the terms of the RPO itself, and with the Practice Direction 11.3, this application is being dealt with by the Court on paper and without any oral hearing.

B.   Basis of Application

8.  The Applicant’s affirmation attaches a proforma document setting out what he says are the grounds of the application.  They are as follows:

(1)  The Deputy Judge failed to carry out sufficient research and enquiry into the country of origin information (“COI”) and failed to have regard to relevant and up-to-date COI in the consideration of his claim and to the Covid-19 virus pandemic worldwide condition;

(2)  The Deputy Judge also failed to address political activities and to pay sufficient regard to supporting documents in rejecting the torture claim;

9.  In the same proforma document, the Applicant also refers to:

(1)  the “worldwide Lockdown for Corona virus Pandemic” [sic], and the updated cases in his country (India) as at 14 September 2021;

(2)  the new (Indian) Citizens Amendment Act 2019;

(3)  his inability to return to India when the situation is “unwell”, “not good” and “getting worse day by day”;

(4)  that the pandemic has caused damage to the political and economic condition of his country which cannot be recovered easily, so that he does not want to go back to his country;

(5)  that he will return to India when the pandemic situation comes to an end and requests permission to stay in Hong Kong until the situation is resolved.

C.   Procedural History

10.  By these proceedings, HCAL 913/2021, the Applicant sought leave to apply for judicial review of the decision (“Decision”) of the Director of Immigration (“Director”) given by letter dated 15 June 2020, refusing to permit a subsequent claim for non-refoulement protection under the Director’s unified screening mechanism. The previous background is as follows.

11.  The Applicant is an illegal immigrant from India.  On 9 December 2015, he lodged a non-refoulement claim on the grounds of torture risk, as well as various other asserted risks.  The factual basis of his claim is that if he were returned to India, he would be harmed or killed (a) by his wife’s former schoolmate, who wanted her to divorce the Applicant to marry him, and (b) by his creditor because he was unable to repay the loan of Rs.300,000 for his business.

12.  The claim for protection was unsuccessful right through the decisions of the Director and the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office, and then intended judicial review through the Courts. The original rejection by the Director was on 23 January 2017.  On appeal, the Board did not accept the Applicant’s evidence, and so rejected his factual evidence in support of his claim.  The Applicant then turned to the courts.  The final dismissal of the Applicant’s application for leave to appeal from the Court of Appeal decision was dismissed by the Appeal Committee of the Court of Final Appeal on 6 January 2020.

13.  By letter dated 15 January 2020, the Applicant requested to make a subsequent claim for non-refoulement protection under the unified screening mechanism.  That request was refused by the Decision on 15 June 2021.  The Applicant applied for leave to apply for judicial review of the Decision on 24 June 2021.

14.  In his Decision, the Deputy Judge noted that under section 37ZO of the Immigration Ordinance, the Applicant had to satisfy the immigration officer that there had 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.  The Deputy Judge referred to the six documents relied upon by the Applicant, and noted that the Director had accepted that there were significant changes of circumstances in India, but those changes would not give the Applicant a realistic prospect of success in his subsequent claim.  As regards the claim based upon risks from the wife’s schoolmate, it was noted that the schoolmate had already married so that the risk was non-existent.  As regards the risk from the creditor, it was noted that it was originally based on an inability to repay the debt, but now the Applicant claimed that the creditor caused harassment to his wife because of his political background.  No satisfactory explanation for such change was put forward, and the Director did not accept that the creditor would harm or kill the Applicant for political reasons.  Further, the inability to pay the debt had been dealt with in the original claim.

15.  The Deputy Judge noted that no grounds were specified by the Applicant in support of his application.  The Deputy Judge found no error of law or procedural unfairness in the Decision, and that the finding of facts was not in any respect open to challenge as Wednesbury unreasonable or irrational.  As there was no reasonable prospect of success in the subsequent claim, the Applicant’s application for leave to apply for judicial review was dismissed.

16.  At the hearing, the Applicant was notified that the Court was of its own motion considering imposing an RPO.  Upon being requested to show cause why the Court should not make the RPO against him, the Applicant asked the Court to consider his case carefully as his life was in danger.  Having considered the explanation, the Deputy Judge was satisfied that, if not restrained, the Applicant would likely proceed with this application or other proceedings on the same facts for the sole purpose of remaining in Hong Kong.  Therefore, he made the RPO.

D.   Consideration

17.  I do not think what the Applicant says in his proforma attachment to his application provides any new or further information as might justify or show merit in any subsequent claim, following the full consideration and rejection of his original claim.  I also see no merits at all in the Applicant’s desired appeal.  Rather, the Applicant is engaged in the vexatious and calculated attempt to delay the inevitable and/or a refusal to accept the unfavourable final result of litigation.

18.  In the circumstances, I see no basis for exercising the discretion to set aside the RPO, or to permit the Applicant in any event to appeal or commence any fresh proceedings.

E.   Result

19.  The Applicant’s application is therefore dismissed, with no order as to costs.  For the avoidance of any doubt, the terms of the RPO remain in force.