NWADOBE CHINATU ELVIS v. DIRECTOR OF IMMIGRATION

HCAL 1014/2022

[2022] HKCFI 3600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1014 of 2022

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 30 June 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1237 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 31 October 2022.

The procedural history

4.  The applicant is a Nigerian national. He came to Hong Kong on 27 February 2011 on a fake passport, which was revealed upon his arrest on 10 September 2012 by police. On 13 September 2012, he lodged his Torture Claim under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Torture Convention”). His Torture Claim was rejected on 19 February 2013 and on appeal, his appeal was dismissed by Torture Claims Appeal Board (the “Board”) on 10 April 2013.

5.  The applicant then lodged a non-refoulement claim which was considered on the grounds of BOR 2 risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. By Notice of Decision dated 20 April 2017, the Director rejected the applicant’s claim on the applicable grounds. He appealed to the Board and his appeal was dismissed by the Board by the Board’s Decision dated 26 January 2018 (“the Board’s Decision”).

6.  He applied for leave for judicial review of the Board’s Decision and was out of time. His application for extension of time to appeal was dismissed by the Court by its Order dated 12 March 2021 (“the Court’s Order”).

7.  He appealed to the Court of Appeal against the Court’s Order. The Court of Appeal dismissed his appeal on 16 August 2021.

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 2021.

9.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 16 February 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 refouled, he would be harmed or killed by the Boko Haram, which is responsible for bombing churches, National Youth Service Corps and the United Nations head office. The Boko Haram opposed to the first Christian president, Goodluck Jonathon. The government was unable to do anything to protect its capital or take any action against the Boko Haram.

12.  The Director found that his claim was not substantiated.

13.  He appealed the Director’s Decisions to the Board. The Board considered the applicant’s evidence and found that the applicant’s evidence not credible, taking into consideration of his fraudulent and deceptive conduct in coming to Hong Kong, his repeated avoidance of the Hong Kong immigration authorities, the exaggerated or manifestly unfounded nature of some of his claims and his failure to raise others in any timely manner. Also, the Board did not accept that the applicant would face more than a remote possibility of being targeted by the Nigerian authorities if he returned there in the reasonably foreseeable future, whether for reason of his race, his imputed political opinion, or for any other reason.

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 realistic prospect of success.

15.  In support of his subsequent claim, he submitted to the immigration officer a statement, in which he stated that he would be the target of the terrorists in Nigeria. However, he was unable to support his allegations with evidence. His alleged fear had been considered by the Board in the previous claim and was rejected. His allegations were found to be far-fetched and speculative.

16.  The Director therefore found that the applicant relies upon the same or similar facts in support of the subsequent claim, such facts, 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

17.  The applicant has filed an affidavit in support of his application, in which he asked the Court to review the Director’s Decision as he had disregarded his dangerous situation.

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 said he understands the Director’s reasons and that he had shown to the immigration officer his supplementary documents. His community was killed by the terrorists in Nigeria. The immigration officer had found that such killing is not evidence of personal risk to the applicant.

20.  There is no valid reason from the applicant to challenge the Director’s Decision.

21.  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.

22.  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

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 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.

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. Upon my enquiry of what comments on the intended RPO, he said he had nothing to say.

27.  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

28.  The applicant’s application is dismissed.

29.  RPO in terms of paragraph 27 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