SHRESTHA SANTOSH KUMAR v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

SHRESTHA SANTOSH KUMAR v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

Leave was refused because the applicant failed to show a significant change of circumstances under s.37ZO that, with previous material, would give his subsequent claim a realistic prospect of success; the Director's decision involved no error of law, procedural unfairness or irrationality; given the applicant's...

Source-derived case information.

Citation
[2021] HKCFI 2390
Parties
Applicant: Shrestha Santosh Kumar; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 August 2021
Case Number
HCAL556/2021
Procedural Posture
Application for Leave to Apply for Judicial Review (subsequent Non Refoulement Claim) / Leave Application Considered on Documents; Leave Refused; Show Cause for Restricted Proceedings Order
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, Judicial Review Leave
Source Language
en
Immigration Law Administrative Law Constitutional Law Non Refoulement Subsequent Claim Under S.37 ZO Restricted Proceedings Order Abuse of Process Judicial Review Leave

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Parties

Shrestha Santosh Kumar

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review (subsequent Non Refoulement Claim) / Leave Application Considered on Documents; Leave Refused; Show Cause for Restricted Proceedings Order

Legal Issues

  1. 1 Whether the applicant satisfied s.37ZO by demonstrating a significant change of circumstances giving realistic prospect of success
  2. 2 Whether the Director's decision was unlawful, procedurally unfair or Wednesbury unreasonable
  3. 3 Whether a Restricted Proceedings Order is proportionate to prevent abuse of process given the applicant's litigation history

Ratio Decidendi

Leave was refused because the applicant failed to show a significant change of circumstances under s.37ZO that, with previous material, would give his subsequent claim a realistic prospect of success; the Director's decision involved no error of law, procedural unfairness or irrationality; given the applicant's repeated unsuccessful litigation on the same facts and intent to re-litigate, a proportionate Restricted Proceedings Order was justified to prevent abuse of the court's process.

Court Disposition

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

Orders

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