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HCAL 758/2024
[2024] HKCFI 1760
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 758 of 2024
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Muhammad Nasir |
Applicant |
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Director of Immigration |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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 of the Director of Immigration dated 7 May 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 257 of 2019 (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 17 June 2024. Before the Court, the applicant admitted that he relied upon the same reasons in his previous claim in support of his subsequent claim. His enemies had killed his brother and filed false information against him.
The procedural history
4. The applicant is a national of Pakistan. Between 1993 and 2003, he had come to Hong Kong under 3 different names. On 3 November 2009, he was arrested by police. On 8 November 2009, he lodged a torture claim under Article 3 of the Convention. The Director refused his application. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed his appeal.
5. By written representation dated 11 July 2013, he lodged a non-refoulement claim on all applicable risks except torture risk[1] for the reasons that if refouled, he will be harmed or killed by the men of Walait Khan because of the land dispute and they wanted to stop him from pursuing a murder case against them.
6. The Director rejected his application. His appeal to the Board was dismissed by the Board on 18 January 2019.
7. He applied to the Court of the First Instance for leave for judicial review of the Board’s decision. The Court of the First Instance refused his application.
8. He appealed to the Court of Appeal, which dismissed his appeal.
9. He applied to the Court of Final Appeal for leave to appeal. The Court of Final Appeal dismissed his application on 22 December 2023.
10. He applied by way of a written letter dated 8 January 2024 to the Director for a subsequent claim.
11. By the Director’s Decision, the Director refused his application.
The subsequent claim application
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 realist prospect of success.
13. He has submitted additional materials in support of his application to the immigration officer.
14. The immigration officer assessed his application on the available information and found that there had not been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.
The application for leave to apply for judicial review application
15. The applicant has filed Form 86 dated 13 May 2024 to apply for leave for judicial review of the Director’s Decision.
16. In the affirmation in support of his application, the applicant raised the grounds below.
(1) The Director was in error for setting the threshold too high.
(2) The Director did not have sufficient ground to reject his application.
(3) The Director is wrong to say that his pro-Khalistan activities is an entirely constructed and false account.
(4) That the Director refused to accept his evidence, saying that the accusation was false and the information hearsay is wrong because the Director had come to his conclusion before he analyzed the evidence.
(5) The Director did not pay attention to the corrupt judicial system in Pakistan, relying on the limited amount of COI to come to his conclusion that he would have a fair trial in Pakistan.
(6) The Director did not have good reasons to dismiss his subsequent claim.
(7) The Director did not consider that he was unjustly implicated in the case against him. He did not consider every singly piece of evidence in his case and merely cherry-picked the ones that he would like to consider.
(8) The Director failed to provide adequate reasons in his decision.
Discussion
17. 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).
18. 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. He further added that his enemies had killed his brother and filed false information against him. Those facts in his previous claim had been considered by the Director and the Board and were rejected.
19. Those grounds under paragraph 16 do not assist the applicant’s application. They are his bare allegations or comments without evidence in support. He admitted that he relied upon the same facts in his previous claim in support of his subsequent claim application, which is an abuse of the process. His application is liable to be struck out for the abuse.
20. There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.
21. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The RPO
22. 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.
23. 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.
24. 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.
25. 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.
26. 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
27. The applicant’s application is dismissed.
28. RPO in terms of paragraph 26 be made against the applicant.
Dated the 23rd day of July 2024
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 23/7/2024
Muhammad Nasir
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/7/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (29972) in ImmD RA 7/37/C (Formerly RBCZ/58/10 & 2000742/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The applicable risks refer to :
a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
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