SAROJ KUMAR KARKI v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

HCAL 703/2023 [2023] HKCFI 1808 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 703 OF 2023 BETWEEN Saroj Kumar Karki Applicant and Director of Immigration Putative Respondent Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following: consideration of the documents only; or consideration of the documents and oral submissions by the Applicant in open court; Order by Deputy High Court Judge Bruno Chan: Leave to apply for Judicial Review be refused; and A Restricted Proceedings Order (RPO) be made against the Applicant. Observations for the Applicant: Introduction This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 24 March 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds. The Applicant is a 56-year-old national of Nepal who arrived in Hong Kong on 9 November 2004 as a visitor with permission to remain as such up to 16 November 2004 when he did not depart and instead overstayed, and was arrested by police almost 3 years later on 21 September 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the Communist Party of Nepal (Maoist) (“Maoists”) for refusing to join their military insurgency against the Nepali government and/or by the Hindu extremist groups against Christians due to his subsequent conversion into Christianity whilst in Hong Kong. Previous Non-Refoulement Claim By a Notice of Decision dated 5 July 2016 and a Notice of Further Decision dated 4 July 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”). In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that it was part of their recruitment campaign to get the Applicant to join their party without any real intention to seriously harm or kill him, while his fear of anti-Christians movement in Nepal was based entirely on his own speculation and without any evidence of ever been exposed to such risk in the past, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that the Maoists have since 2006 ceased their military insurgency against the government and have become a legitimate political party in the country that they no longer adopt any violent practices as in the past that would post any risk to the Applicant, and that if necessary reasonable internal relocation alternatives would be available to the Applicant in Nepal with a large population of 31 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him. The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 25 May 2018 after hearing him in his appeal hearing and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions. The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 2 December 2019 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 986/2018 [2019] HKCFI 2451). The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 4 June 2020 (CACV 576/2019 [2020] HKCA 429). The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 23 December 2021 ([2021] HKCA 1939), and then by the Appeal Committee of the Court of Final Appeal on 26 August 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484A. Request To Make Subsequent Claim Just one month later on 29 September 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that those Maoists are still looking for him everywhere in Nepal, and have even made false charges against him that he still fears of being harmed or killed if refouled to his home country. There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows: “(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim. (2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that – (a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. (3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person. (4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision. (5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.” Accordingly, on 19 October 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but which he eventually failed to do so despite having private legal representation and had been repeatedly given further and extended periods for him to provide further information in support of his request. By a Notice of Decision dated 24 March 2023 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has 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 any realistic prospect of success given the unchallenged finding by both the Director and the Board in his previous claim that the Maoists have since 2006 ceased all military and violent activities against the government or the citizens that there is simply no proper basis for any risk from the Maoists in the Applicant’s proposed subsequent claim. On 12 May 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in his supporting affirmation filed on the same day he put forth the following grounds for his intended challenge: That the Director relied on biased observations designed to reject the Applicant’s claim on basis which lacked completeness and evidence; That the Director erred in determining that there is no realistic prospect of success in the Applicant’s subsequent claim by placing an unnecessarily high standard in determining the realistic of success in the Applicant’s subsequent claim; That the Director’s decision not to allow the Applicant to make a subsequent claim is erroneous and biased without relying on any facts of the case and was purely targeting the Applicant for a situation which the Director has not experienced firsthand; That the Director merely repeated what was decided by the Board against the Applicant’s previous claim to refuse his request to make a subsequent claim; That it was procedurally unfair for the Director not to conduct any screening interview for the Applicant or to provide him with any legal representation for his request to make a subsequent claim; and That it was procedural unfairness not to allow the Applicant to appeal to the Board against the Director’s refusal of his request to make a subsequent claim. Most of these grounds are however just some vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaboration as to how they apply to his case, or in what way was the Director biased or erroneous in the determination of his request to make a subsequent claim, while it is clearly incorrect to complain that he was not provided legal representation when he in fact had private legal representation for his request to make a subsequent claim. As such I do not these grounds reasonably arguable for his intended challenge. As for his complaint of not given any screening interview for his request to make a subsequent claim, it is well established that there is no absolute right to an oral hearing, and for that matter any screening interview, as the ultimate question is one of fairness, and while an opportunity to make worthwhile or effective representations is an important requirement of fairness in most but not all situations, it does not follow that there must be an oral hearing or screening interview being held before a decision is to be made: ST v Betty Kwan [2014] 4 HKLRD 277. Given that it was for the Applicant in his request to make a subsequent claim to provide sufficient evidence in writing to satisfy an immigration officer of those requirements under Section 37ZO(2) of the Ordinance as noted above, and that on the basis of such evidence and information as provided that the immigration officer was entitled to take into account of the findings of credibility and facts made by both the Director and the Board in relation to the Applicant’s previous claim, it is in my judgment that the immigration officer in the exercise of his discretion was not at fault in not holding any screening interview for the Applicant’s request given the correct findings that the basis of the Applicant’s proposed subsequent claim is essentially the same as his previous claim, and that his claimed risk from the Maoists is simply not supported by the relevant COI as was correctly found and unchallenged in his previous claim, I am not convinced that any screening interview could have assisted or advanced the Applicant’s case for a subsequent claim or that this complaint of the Applicant reasonably arguable. As for his last complaint of not being allowed to appeal to the Board against the Director’s refusal of his request to make a subsequent claim, which is clearly for legislative purposes and intents that such a process is not stipulated under Section 37ZR of the Ordinance for the provisions of appeals to the Board, and as such I do not find any legal basis in this ground for the Applicant’s intended challenge either. In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse his leave application. Restricted Proceedings Order Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 26 August 2022, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him. Section 27 of the High Court Ordinance, Cap. 4 provides as follows: “Restriction of vexatious legal proceedings The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that – no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance. The Court of First Instance may not make an order under subsection (1) unless – it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and it has heard the person against whom the order is to be made or given him an opportunity of being heard. An order made under subsection (1) – may be made on such terms and conditions as the Court of First Instance thinks just; and may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely. …” Relevantly, Section 27A also provides: “(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that – the proceedings are not an abuse of the process of the court in question; and there are reasonable grounds for the proceedings. (2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.” In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section. His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]). In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]). In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or to raise any valid objection at the hearing of his application, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary. Accordingly, I make the following order: The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance; All applications for leave under paragraph (1) shall be made to 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; 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 his said application for leave; 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; 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 the designated Judge should otherwise direct; 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; Notice of each decision by 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; Whether or not any fresh proceedings are brought to the notice of 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; No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months; No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge; This order shall cease to have effect at the end of 5 years from the date of this Order; and A copy of this Order shall be sent to the Registrar of the High Court. Disposition The Applicant’s application for leave to apply for judicial review is dismissed. A RPO in terms of paragraph 26 be made against the Applicant. Dated the 12th day of July 2023 (Chung Lai Fan, Christine) for Registrar, 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 12 July 2023 Saroj Kumar Karki Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 July 2023 Director of Immigration Putative Respondent’s ref. no.: L/M (26588) in ImmD RA 7/37/C (formerly RBCZ/1477/07 & RBCZ/9002413/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1