CACV 24/2022
[2022] HKCA 522
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 24 OF 2022
(ON APPEAL FROM HCAL 1256 OF 2021)
_____________________
| BETWEEN | | |
| | SHAIK ABDUL MONIR | Applicant |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Respondent |
_____________________
Before: Hon Chow JA and Wong J in Court
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“the Judge”) on 20 October 2021 refusing to grant leave to apply for judicial review of the Notice of Decision of the Director of Immigration (“the Director”) dated 22 June 2021.
2. The Applicant has not filed any skeleton argument in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter to the Applicant dated 17 February 2022. Accordingly, the Applicant is deemed to have waived his right for an oral hearing and elected to have his appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 4 of the said letter.
BACKGROUND
3. The Applicant is a repeated non-refoulement claimant. He is a national of India. In August 2014, he was arrested by the police for overstaying in Hong Kong illegally. He lodged a non-refoulement claim with the Immigration Department, but later withdrew his application and was repatriated back to India. He entered Hong Kong illegally again and was arrested by the police on 14 February 2016 for illegally remaining in Hong Kong. He again raised a non-refoulement claim.
4. The Applicant claimed that if refouled to India, there was a risk that he would be harmed or killed by the family members of his girlfriend as they objected to their relationship.
5. The Applicant’s non-refoulement claim was dismissed by the Director in his decision dated 17 November 2016 on all applicable grounds: torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
6. The Applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”). On 18 May 2018, the Board dismissed the appeal and confirmed the decision of the Director. The Applicant then sought leave to apply for judicial review which was refused by the Court of First Instance on 23 January 2019. The Applicant lodged an appeal against the decision of the Court of First Instance. On 25 July 2019, the Court of Appeal dismissed the appeal. The Applicant’s notice of motion for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Appeal on 19 December 2019 and by the Appeal Committee of the Court of Final Appeal on 5 March 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.
7. On 11 November 2020, the Applicant applied to the Director to make a subsequent claim upon the same facts that his girlfriend’s family was still looking for him and would do him harm if he returned to India. In the meantime, he married a Hong Kong resident in Hong Kong on 7 October 2020.
8. By a Notice of Decision dated 22 June 2021, the Director refused to allow the Applicant to make a subsequent claim (“the Director’s Decision”). The Director considered that the Applicant had failed to meet the requirement as stipulated by Section 37ZO(2) of the Immigration Ordinance and had failed to provide sufficient evidence to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success.
9. On 6 September 2021, the Applicant filed a Form 86 and supporting affirmation seeking leave to apply for judicial review of the Director’s Decision (see Form CALL-1 at §18).
THE JUDGE’S DECISION
10. In his decision dated 20 October 2021, the Judge observed that the Applicant did not provide any specific grounds in support of his application. The Judge, having considered the Director’s Decision with rigorous examination and anxious scrutiny, did not find any error of law or procedural unfairness in the Director’s Decision, and was of the view that the Director’s findings of facts were not in any respect open to challenge as Wednesbury unreasonable or irrational (see Form CALL-1 at §§20-24). The Judge was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review. Accordingly, the Judge refused the Applicant’s leave application.
11. In light of the fact that the Applicant’s non-refoulement claim had already been conclusively determined in previous proceedings, and the Applicant was still trying to re-litigate his case by seeking to make a subsequent claim, the Judge found that the Applicant’s conduct amounted to an abuse of process (see Form CALL-1 at §§25-30).
12. Accordingly, the Judge made a restricted proceedings order (“the RPO”) against the Applicant, such that he 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, without leave of the Court of First Instance.
THIS APPEAL
13. On 5 January 2022, the Judge granted the Applicant leave to file a notice of appeal against his decision.
14. In the Notice of Appeal filed by the Applicant dated 11 January 2022, the Applicant does not put forward any proper ground of appeal, but merely states that “the High Court dismissed my leave to apply for judicial review. He could not find any difference between my two claim. I want to show.” There is no appeal against the RPO made by the Judge.
DISCUSSION
15. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
16. The Applicant has not pointed to any specific errors in the Judge’s decision, or raised any viable grounds of appeal against the Judge’s decision refusing to grant leave to apply for judicial review.
17. As earlier mentioned, the Applicant has not sought to challenge the RPO in his Notice of Appeal. In any event, even if the Applicant has done so, we are satisfied that the RPO made by the Judge was correctly made, and there is no proper ground to challenge the RPO.
18. In all, the Applicant’s appeal is unmeritorious, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Albert Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.