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

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

Leave to apply for judicial review was refused because the applicant failed to demonstrate a significant change of circumstances under s.37ZO that would give the subsequent non‑refoulement claim a realistic prospect of success; the Director's decision was lawful, supported by findings that the risk was low and state protection or relocation was available, and was not Wednesbury unreasonable. An RPO was justified because the applicant's conduct and procedural history showed a clear risk of abuse by re‑litigation solely to remain in Hong Kong.

Citation
[2022] HKCFI 689
Parties
Applicant: Mohammad Mukhtar; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 March 2022
Case Number
HCAL107/2022
Procedural Posture
Judicial Review Leave to Apply / Decision on Leave Application; 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 S.37 ZO, Restricted Proceedings Order, Abuse of Process, Leave to Apply for Judicial Review
Source Language
EN
Immigration Law Administrative Law Constitutional Law Non Refoulement Subsequent Claim Under S.37 ZO Restricted Proceedings Order Abuse of Process Leave to Apply for Judicial Review

Case Brief

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Parties

Mohammad Mukhtar

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Judicial Review Leave to Apply / Decision on Leave Application; Restricted Proceedings Order Made

Legal Issues

  1. 1 Whether the Director lawfully refused the applicant's subsequent non-refoulement claim under s.37ZO of the Immigration Ordinance
  2. 2 Whether there was a significant change of circumstances sufficient to give the subsequent claim a realistic prospect of success
  3. 3 Whether a Restricted Proceedings Order (RPO) was justified to prevent abuse of the court process

Ratio Decidendi

Leave to apply for judicial review was refused because the applicant failed to demonstrate a significant change of circumstances under s.37ZO that would give the subsequent non‑refoulement claim a realistic prospect of success; the Director's decision was lawful, supported by findings that the risk was low and state protection or relocation was available, and was not Wednesbury unreasonable. An RPO was justified because the applicant's conduct and procedural history showed a clear risk of abuse by re‑litigation solely to remain in Hong Kong.

Court Disposition

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

Orders

  • Applicant is prohibited from commencing any fresh proceedings or continuing any existing legal proceedings relating to any non-refoulement claim in the High Court, and any appeal, including this Order, without leave of the Court of First Instance.
  • 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.