SHIPON MD v. DIRECTOR OF IMMIGRATION

HCAL 1531/2021

[2021] HKCFI 3562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1531 of 2021

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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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

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 dated 12 October 2021 of the Director of Immigration (the “Director’s Decision”) refusing his subsequent claim of HCAL 1049 of 2018 (the “original 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.

The procedural history

3.  The applicant is an illegal immigrant from Bangladesh. He raised non-refoulement claim with the Immigration Department by written signification on 11 February 2014 on the grounds of Torture risk under the Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention, and subsequently, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance.

4.  His claim was rejected by the Director by a Notice of Decision dated 18 January 2016 for the first 3 risks and a Notice of Further Decision dated 12 June 2017 for the BOR 2 risk.

5.  He appealed to the Torture Claims Appeal Board (the “Board”).  By its Decision dated 24 April 2018 (the “Board’s Decision”), the Board dismissed his appeal.

6.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 23 January 2019 (the “Court’s Order”).

7.  He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 15 July 2019.

8.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 31 December 2019.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 5 March 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 7 April 2021.

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

The subsequent claim application

12.  The factual basis of his claim is that if refouled, he will be harmed or killed by members of the Awami League Party (the “AL”) because of his active participation on activities of the opposition party, the Bangladesh Nationalist party (“BNP”).  He also feared that he would be arrested for a frame-up case if he returned to Bangladesh.

13.  The Director found that his claim was not substantiated.  He found that the level of risk of him being harmed or killed if he returned to Banglades was low; that the dispute was a private dispute and there was no evidence to show that the state was involved; that state protection was available to him and that internal relocation was an option open to him.

14.  The Board affirmed the Director’s Decision.  The Board accepted that he was involved in conflicts with his opposition political party and were ill-treated.  He had attended before the Board for a hearing.  But he refused to give evidence at the hearing.  The Board bore in mind that the case must be considered with utmost caution and a high standard of fairness.  The adjudicator did not set out the questions he intended to put to the applicant.  He proceeded to consider the case and found that he was not satisfied that he had proved his case in respect of each of the risks he claimed.

15.  The Board did not find that the applicant’s evidence was incredible or he had fabricated his case.  The issue was the strength of the evidence that supported the applicant’s case.  It simply analyzed the evidence before him and found that the evidence did not support the applicant’s claim.  Therefore, this case should be differentiated from the recent Court of Appeal’s decision in in Re Masud MD [2021] HKCA 1449, 7 October 2021.  I consider that I am bound by the decisions in the Court of Final Appeal’s case of Li Defan and Fan Ying Chao v HKSAR (2002) 5 HKCFA 320.

16.  The above is a criminal case tried by the District Court.  The defendants were charged with bribery offence.  Both of them had given video evidence at the ICAC.  They elected not to give evidence at the trial.  The trial judge drew adverse inference against their explanation in the video conference and convicted them of the charge.  Before the Court of Final Appeal, the issue was whether the judge erred in law in saying that he could more readily draw inferences against the accused because they had not given evidence.  One must bear in mind that for criminal matter, the burden is on the prosecution to prove its case.  The defendant has no burden of proof of his innocence.  In this matter, the burden is on the applicant to prove his case to the Board.

17.  On the question whether the court can draw adverse inference against the accused who elected not to give evidence, Lord Hoffmann said:

“27. … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

18.  As to the proper approach for a judge alone trial, Lord Hoffmann was of the opinion that a single judge might be in a better position to assess the evidence than a jury and a common sense approach should be adopted:

“31. It [is] my opinion it should equally be accepted that unless there are indications to the contrary, the judge is aware that the accused is not obliged to give evidence and that failure to give evidence is not an admission of guilt. If, therefore, the judge appears to have, or says he has, used the failure of the accused to give evidence as an element in the reasoning by which he arrived at a finding of guilt, the only question is whether on the particular facts of the case such reasoning was legitimate. As Lord Diplock remarked in Haw Tua Tau v. Public Prosecutor [1982] AC 136, it is hard to say more than that this is a matter of common sense.”

19.  At the hearing before the Board, the consequences of not answering questions from the Board or not giving evidence is quite apparent to the applicant.  The burden is on the applicant to convince the Board that he had a genuine case for non-refoulement.  His attendance is purely on the question of the facts he had alleged before the immigration officer.  The Board will ask him no other questions than on the issues of the fact he alleged.  The cross-examination of the Board may proceed further and deeper into the facts as explanations are given to it by the applicant.  If he fails to convince the Board on the facts of his case, his claim has no chance of success.

20.  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.

21.  He relies upon the similar facts in support of his subsequent claim, saying that his mother in Bangladesh had told him that his enemies and the police were still looking for him, that his enemies had threatened to kill him when they see him again, that his enemies had hit his father and broke the windows and doors of their house.  The police are still looking for him under a warrant of arrest of the charge of smuggling weapons.  She advised him not to return to Bangladesh.

22.  The Director took the view that the above matters were the same issues in support of his original claim, which had been considered by the immigration officer and the Board.  He also considers that the information from his mother is hearsay evidence, which cannot be tested.  He gives very little weight to the evidence.  He does not accept that those are significant change of circumstances as his threats arise from his original claim.  Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

23.  The applicant has filed an affirmation in support of his application.  He said that the Director had failed to consider all the matters raised in his claims and failed to give adequate reasons for his decision.

24.  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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

25.  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 that he had no other way of staying in Hong Kong.

26.  It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.  The Director has set out the salient facts of his claim and given reasons for his Decision. It is clear that he had declined his chance of putting his case before the Board himself.  He should not be allowed to complain that the Director had not considered his claim.

27.  The applicant has no valid reason to challenge the Director’s Decision.

28.  The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

29.  Since 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

30.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his original 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.

31.  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.

32.  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.

33.  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 has been explained the proposed restricted proceedings order before this hearing.

34.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant said that apart from going back, the court could issue any order.

35.  Having considered the applicant’s explanation, 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 Court of First Instance, without leave of the Court of First Instance.

(2)     All applications for leave under paragraph (1) shall be made to Deputy 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 designated Judge 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 designated Judge for a decision as to whether they should be permitted to continue or should be dismissed.

(7)     Notice of each decision by 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 designated Judge, 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)   This order shall cease to have effect at the end of 5 years from the date of this order.

(11)   A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

36.  The applicant’s application is dismissed.

37.  RPO in terms of paragraph 35 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