KASHIF ANWAR v. DIRECTOR OF IMMIGRATION

HCAL 1472/2021

[2021] HKCFI 3514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1472 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 Director’s Decision dated 8 July 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 795 of 2017 (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 Pakistan.  He raised torture claim protection on 2 March 2008.  He withdrew his claim, but asked to reinstate it.  His claim was rejected by the Director.  He appealed to the Board, but before his case was heard, he withdrew his appeal.  Finally, he was repatriated on 5 September 2014.  He came to Hong Kong illegally again on 27 December 2015, the same day, he was arrested.  He was charged, convicted and sentenced to 18 months’ imprisonment.  He raised non-refoulement claim with the Immigration Department by written representations on 12 January 2017, 5 March 2017 and 13 April 2017 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention. 

4.  His claim was rejected by the Director by a Notice of Decision dated 30 June 2017.

5.  He appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 4 October 2017 (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 24 December 2018 (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 17 May 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 25 July 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 29 September 2020.

10.   He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by two letters respectively dated 26 November 2020 and 21 January 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 his paternal uncles and their men, the Butts because of a dispute arising of selling his property to his uncles.

13.   The Director found that his claim was not substantiated. He found that there was no evidence for believing that he would be harmed or killed as alleged if he returned to Pakistan; that there was no reliable evidence to show that the political party to which his parental uncles belong was involved; that reasonable 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 also found that he was not a truthful witness.

15.   Under section 37 ZO 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.   In support of his subsequent claim, he relies upon the information from his mother in Pakistan saying that she has been harassed by his parental uncles and the Butts all along and they are still looking for him. His uncles also fabricated a case of murder against him.

17.   The Director does not put much weight on the hearsay evidence of his mother because the evidence cannot be tested. The Director 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 fabricated case would be properly dealt with by the court of Pakistan if he returns to Pakistan. It is on this basis the Director refused his subsequent claim.

The application for leave to apply for judicial review

18.   The applicant has filed an affirmation in support of his application. He said that he does not accept the Board’s Decision as his life would be in peril if he returned to Pakistan.

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, CA. §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 agreed that the Director was not wrong in his decision.

21.   It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.

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

23.   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.

24.   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

25.   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.

26.   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.

27.   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.

28.   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.

29.   Upon being requested to show cause why the Court should not make the RPO against him, the applicant had nothing to say.

30.   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 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 this Court or 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 this Court or 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 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 this Court or 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.

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