NALUBEGA SARAH AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

NALUBEGA SARAH AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

Leave to apply for judicial review was refused because applicants relied on the same facts previously rejected and the Director reasonably concluded the additional material did not meet s37ZO's threshold of a significant change giving the subsequent claim a realistic prospect of success; an RPO was justified to prevent abuse of process by re‑litigation of identical claims.

Citation
[2024] HKCFI 585
Parties
1st Applicant: Nalubega Sarah; 2nd Applicant: Nalubega Dylan Alfred; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 March 2024
Case Number
HCAL1744/2023
Procedural Posture
Application for Leave to Apply for Judicial Review / Decision on Leave Application (consideration of Documents)
Outcome
Joint application for leave to apply for judicial review dismissed; leave refused.
Legal Topics
Non Refoulement, Subsequent Claim Under Section 37 ZO, Restricted Proceedings Order, Abuse of Process, Torture and CIDTP Risks, Bill of Rights (right to Life)
Source Language
EN
Immigration Law Constitutional and Administrative Law Judicial Review Human Rights Law Procedural Law Non Refoulement Subsequent Claim Under Section 37 ZO Restricted Proceedings Order +3 more

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Parties

Nalubega Sarah

1st Applicant

Nalubega Dylan Alfred

2nd Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Decision on Leave Application (consideration of Documents)

Legal Issues

  1. 1 Whether the subsequent claim met the s37ZO threshold of significant change and realistic prospect of success
  2. 2 Whether a Restricted Proceedings Order (RPO) should be made to prevent abuse of process
  3. 3 Whether the Director complied with public law requirements in his decision-making

Ratio Decidendi

Leave to apply for judicial review was refused because applicants relied on the same facts previously rejected and the Director reasonably concluded the additional material did not meet s37ZO's threshold of a significant change giving the subsequent claim a realistic prospect of success; an RPO was justified to prevent abuse of process by re‑litigation of identical claims.

Court Disposition

Joint application for leave to apply for judicial review dismissed; leave refused.

Orders

  • Restricted Proceedings Order prohibiting the Applicants from commencing or continuing any fresh proceedings relating to any non-refoulement claim in the High Court without leave of the Court of First Instance.
  • All applications for leave under the RPO to be made to Deputy High Court Judge Lung or designated judge.