BUI VAN DAI v. DIRECTOR OF IMMIGRATION

HCAL 1736/2024

[2024] HKCFI 3292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1736 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 11 September 2024 (“the Director’s Decision”), refusing his subsequent claim of HCAL 2669 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 6 November 2024 and admitted that he relied upon the same reasons in his previous claim in support of his subsequent claim.

The procedural history

4.  The applicant is a national of Vietnam. He came to Hong Kong illegally through China on 29 September 2014, the same day he was arrested by police. He lodged his non-refoulement claim with the Immigration Department on 5 October 2014 by written representation on the applicable risks[1]. He claimed that if refouled, he would be harmed or killed by his creditor because he was unable to repay his debt.

5.  By Notice of Decision dated 18 May 2017, the Director refused his claim on the applicable risks.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). The Board, by the Board’s Decision dated 16 November 2018, dismissed his appeal on all applicable risks.

7.  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 13 May 2021 (“the Court’s Order”). He applied to the Court of the First Instance for an extension of time to appeal to the Court of Appeal. His appeal was dismissed by the Court of Appeal and his application for leave to appeal to the Court of Final Appeal was refused on 24 April 2024 by the Court of Final Appeal.

8.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 25 April 2024.

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

The subsequent claim application

10.  The Director found that his previous claim was not substantiated.

11.  The Board did not accept that he had been ill-treated as he alleged and that there would be a real risk that he would be ill-treated or at the risk of arbitrary deprivation of life if he returned to Vietnam. The Board further found that there was no evidence that state protection would not be available to him as he alleged.

12.  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.

13.  In support of his subsequent claim, the applicant submitted to the immigration officer his statement together with some materials, which showed that the creditor had tortured or killed those who failed to repay the loans.

14.  Having considered the additional materials, the immigration officer found that his reasons for this application were the same in his previous claim, which had been considered and rejected.

15.  For the reasons above, the Director therefore found that the applicant relied upon the facts, which when considered together with his previous claim, would 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 application

16.  The applicant has filed Form 86 on 3 October 2024 to apply for leave for judicial review of the Director’s Decision.

17.  In the affirmation in support of his application, the applicant did not raise any specific reason to challenge the Director’s Decision.

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. Before me, the applicant admitted that he relied upon the same facts in his previous claim in support of his application for subsequent claim.

20.  The applicant has raised no valid ground to challenge the Director’s Decision.

21.  There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.

22.  I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

23.  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.

24.  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.

25.  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.

26.  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 RPO was explained to the applicant before the hearing. When asked whether he had anything to say about the proposed RPO, he said he had nothing to say.

27.  I am therefore 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

28.  The applicant’s application is dismissed.

29.  RPO in terms of paragraph 27 be made against the applicant.