SARR YAHYA v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

SARR YAHYA v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

The Director correctly applied section 37ZO and found the Applicant failed to demonstrate a significant change of circumstances or a realistic prospect of success; there was no error of law or procedural unfairness in that decision; the Applicant’s persistent attempts to relitigate a finally determined non-refoulement claim constituted an abuse of process warranting a Restricted Proceedings Order which prohibits fresh or continued non-refoulement proceedings without a Judge's leave for five years.

Citation
[2023] HKCFI 326
Parties
Applicant: Sarr Yahya; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 February 2023
Case Number
HCAL991/2022
Procedural Posture
Judicial Review Leave to Apply / Decision on Leave Application (refused)
Outcome
Leave to apply for judicial review refused; Restricted Proceedings Order made against the Applicant
Legal Topics
Non Refoulement, Torture Risk, Subsequent Claim, Unified Screening Mechanism, Restricted Proceedings Order, Abuse of Process
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Law Non Refoulement Torture Risk Subsequent Claim Unified Screening Mechanism +2 more

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Parties

Sarr Yahya

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Judicial Review Leave to Apply / Decision on Leave Application (refused)

Legal Issues

  1. 1 Whether the Applicant established a significant change of circumstances under section 37ZO to permit a subsequent non-refoulement claim
  2. 2 Whether the Director erred in law or acted unfairly in refusing permission to make a subsequent claim
  3. 3 Whether a Restricted Proceedings Order (RPO) should be made to prevent vexatious relitigation

Ratio Decidendi

The Director correctly applied section 37ZO and found the Applicant failed to demonstrate a significant change of circumstances or a realistic prospect of success; there was no error of law or procedural unfairness in that decision; the Applicant’s persistent attempts to relitigate a finally determined non-refoulement claim constituted an abuse of process warranting a Restricted Proceedings Order which prohibits fresh or continued non-refoulement proceedings without a Judge's leave for five years.

Court Disposition

Leave to apply for judicial review refused; Restricted Proceedings Order made against the Applicant

Orders

  • Applicant prohibited from commencing or continuing any proceedings in the High Court relating to any non-refoulement claim without the leave of a Judge of the Court of First Instance
  • All leave applications under the order to be made to the Judge in charge of the Constitutional and Administrative Law List or a designated Judge