UDDIN BORHAN v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

UDDIN BORHAN v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

Leave was refused because the applicant failed to demonstrate a significant change in circumstances under s37ZO and there was no reasonable prospect of success; the Director's and Board's factual findings were not Wednesbury unreasonable or legally defective; because the applicant persistently sought to re-litigate already-determined non-refoulement claims without viable grounds, an RPO extending to leave applications was a proportionate exercise of the court's inherent jurisdiction to prevent abuse of process.

Citation
[2021] HKCFI 2129
Parties
Applicant: Uddin Borhan; Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 July 2021
Case Number
HCAL467/2021
Procedural Posture
Application for Leave to Apply for Judicial Review / Application for Leave Under Order 53 (permission Stage)
Outcome
Application for leave to apply for judicial review dismissed; Restricted Proceedings Order made against applicant.
Legal Topics
Non Refoulement, Torture Risk, Subsequent Claim Under Section 37 ZO, Restricted Proceedings Order, Abuse of Process, Wednesbury/unreasonableness
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Law Judicial Review Non Refoulement Torture Risk Subsequent Claim Under Section 37 ZO +3 more

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Parties

Uddin Borhan

Applicant

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Application for Leave Under Order 53 (permission Stage)

Legal Issues

  1. 1 Whether the applicant satisfied section 37ZO of the Immigration Ordinance by showing a significant change of circumstances since the previous determination
  2. 2 Whether the Director of Immigration's refusal of the subsequent claim was unlawful, Wednesbury unreasonable, procedurally unfair or otherwise susceptible to judicial review
  3. 3 Whether the applicant was abusing court process by repeatedly re-litigating concluded non-refoulement claims and whether a Restricted Proceedings Order (RPO) should be made and extend to leave applications

Ratio Decidendi

Leave was refused because the applicant failed to demonstrate a significant change in circumstances under s37ZO and there was no reasonable prospect of success; the Director's and Board's factual findings were not Wednesbury unreasonable or legally defective; because the applicant persistently sought to re-litigate already-determined non-refoulement claims without viable grounds, an RPO extending to leave applications was a proportionate exercise of the court's inherent jurisdiction to prevent abuse of process.

Court Disposition

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

Orders

  • Applicant is prohibited from commencing fresh proceedings or continuing existing proceedings relating to any non-refoulement claim in the High Court without leave of the Court of First Instance.
  • All applications for leave under this order must be made to the Judge in charge of the Constitutional and Administrative Law List or a judge designated by the Chief Judge.