DALOWAR MOHAMMAD v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

DALOWAR MOHAMMAD v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

The Director's decision to refuse the subsequent claim was not shown to contain an error of law, procedural unfairness or be irrational; the applicant failed to demonstrate a significant change of circumstances under s.37ZO that, combined with previous material, would give the subsequent claim a realistic prospect of success; accordingly leave for judicial review was refused. Given the history of repeated unsuccessful challenges and attempts to re-litigate identical issues, a proportionate Restricted Proceedings Order was necessary to prevent abuse of the court process.

Citation
[2021] HKCFI 2266
Parties
Applicant: Dalowar Mohammad; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 August 2021
Case Number
HCAL938/2021
Procedural Posture
Application for Leave to Apply for Judicial Review / Decision on Leave (refused) and Restricted Proceedings Order Made
Outcome
Application for leave to apply for judicial review dismissed; Restricted Proceedings Order made against the applicant
Legal Topics
Non Refoulement, Subsequent Claim Under Unified Screening Mechanism, Restricted Proceedings Order (rpo), Abuse of Process, Legal Aid Stay
Source Language
EN
Immigration Law Administrative Law Constitutional Law Civil Procedure Non Refoulement Subsequent Claim Under Unified Screening Mechanism Restricted Proceedings Order (rpo) Abuse of Process +1 more

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Parties

Dalowar Mohammad

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Decision on Leave (refused) and Restricted Proceedings Order Made

Legal Issues

  1. 1 Whether the applicant established a significant change of circumstances under s.37ZO Immigration Ordinance to give the subsequent claim a realistic prospect of success
  2. 2 Whether the Director's decision and the Board's decision were unlawful, procedurally unfair or Wednesbury irrational
  3. 3 Whether a Restricted Proceedings Order is proportionate and necessary to prevent abuse of the court process

Ratio Decidendi

The Director's decision to refuse the subsequent claim was not shown to contain an error of law, procedural unfairness or be irrational; the applicant failed to demonstrate a significant change of circumstances under s.37ZO that, combined with previous material, would give the subsequent claim a realistic prospect of success; accordingly leave for judicial review was refused. Given the history of repeated unsuccessful challenges and attempts to re-litigate identical issues, a proportionate Restricted Proceedings Order was necessary to prevent abuse of the court process.

Court Disposition

Application for leave to apply for judicial review dismissed; Restricted Proceedings Order made against the applicant

Orders

  • Application for leave to apply for judicial review dismissed.
  • Restricted Proceedings Order (RPO) made: (1) Applicant prohibited from commencing any fresh proceedings or continuing existing proceedings relating to any non-refoulement claim in the High Court without leave of the Court of First Instance.