MANJINDER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 85/2023

[2023] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 85 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 October 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 574 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 India. He arrived in Hong Kong on 19 May 2012 as a visitor and was allowed to stay until 2 June 2012. He overstayed and was arrested by police on 10 May 2013. He was charged, convicted and sentenced to 7 months’ imprisonment. By written significations respectively dated 6 September 2013 and 24 September 2013, he raised torture claim under Article 3 of the Convention. On 3 March 2014, his torture claim was taken to be non-refoulement claim on Torture risk under Part VIIC of the Immigration Ordinance, Cap. 152 (“the Ordinance”), other risks being BOR 2 risk, BOR 3 risk and Persecution risk. His claim on Torture risk, BOR 3 risk and Persecution risk was refused by the Director by way of a Notice of Decision dated 7 January 2016 (“the Director’s First Decision”). His claim on BOR 2 risk was refused by the Director by a Notice of Further Decision dated 15 November 2016 (“the Director’s Second Decision”). The Director’s First Decision and the Director’s Second Decision are collectively called (“the Director’s Decisions”).

5.  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 3 April 2017 (the “Board’s Decision”).

6.  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 12 August 2020 (“the Court’s Order”).

7.  His appeal against the Court’s Order was dismissed by the Court of Appeal on 23 April 2021.

8.  His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 28 September 2021.

9.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 16 June 2022.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 July 2022.

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

The subsequent claim application

12.  The applicant’s previous claim is on the basis that, if refouled, he would be harmed or killed by the family of a deceased boy as he was involved in a fatal car accident which caused the boy’s death.

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

14.  The applicant appealed to the Board. The Board considered the applicant’s evidence and found that the applicant had not made out his case. The Board found that the applicant did not suffer any serious injury from the alleged attack. It was an isolated incident. There was no real intention from the family members of the boy to harm or kill him. There was no evidence of public official involvement. There was no report to the local police. There was no real chance that the applicant would be harmed. The applicant failed on all applicable grounds.[1]

15.  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.

16.  The applicant submitted his statement and some supporting documents for his subsequent claim application. Having considered the evidence, the Director found that he relied upon the same fear and threats from his enemies, which had been considered by the Board in his previous claim. There is no evidence that supports there is a change of circumstances in his case.

17.  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

18.  The applicant has filed an affirmation in support of his application. In his affirmation, he set out the grounds as follows:

a.  he is a genuine asylum seeker and he is lucky that he was able to flee his country;

b.  there was no screening interview by the Immigration Department;

c.  without the screening interview, it is unfair to him;

d.  he did not have the chance to appeal the Director’s Decision to the Board, which is unfair to him; and

e.  the Director’s Decision is wrong because he had not gone to his country to understand his case and the real danger he will face if he returns to India.

DISCUSSION

19.  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).

20.  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 he had obtained some documents after the Director’s Decision. The Court explained to him that it had no power of making investigation into the facts of his case, which is within the province of the Director.

21.  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.”

22.  As to the grounds under paragraph 18 above, a. is his opinion only; b. c. and d. are the legal procedures provided under the Ordinance. Since this is his subsequent claim, he had had a screening interview and the chance of appeal for his previous claim, there is nothing amiss for the procedures for the subsequent claim. As to e., it is unnecessary for the Director to go to the applicant’s country to understand the situation as he may rely on the country of origin information. The applicant had already had the chance to state his case to the Director.

23.  The applicant has raised no valid ground to challenge the Director’s Decision. 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 had nothing to say.

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