YEASHMIN v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

YEASHMIN v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

Leave to apply for judicial review was refused because the applicant failed to show a significant change of circumstances under s37ZO that, taken with prior material, would give the subsequent claim a realistic prospect of success; the Director’s factual findings were not Wednesbury unreasonable or procedurally unfair; the applicant was re-litigating previously determined facts and, absent restraint, was likely to abuse the court process, therefore a Restricted Proceedings Order was necessary to prevent further abuse.

Citation
[2021] HKCFI 3045
Parties
Applicant: Yeashmin; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 October 2021
Case Number
HCAL1343/2021
Procedural Posture
Judicial Review (leave to Apply) / Application for Leave Refused; Restricted Proceedings Order Made
Outcome
Applicant's application for leave to apply for judicial review dismissed; Restricted Proceedings Order made against applicant
Legal Topics
Non Refoulement, Subsequent Claim Under S37 ZO, Restricted Proceedings Order, Abuse of Process, Leave to Apply for Judicial Review
Source Language
EN
Immigration Law Constitutional Law Administrative Law Civil Procedure Non Refoulement Subsequent Claim Under S37 ZO Restricted Proceedings Order Abuse of Process +1 more

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Parties

Yeashmin

Applicant

Director of Immigration

Putative Respondent

Procedural Posture

Judicial Review (leave to Apply) / Application for Leave Refused; Restricted Proceedings Order Made

Legal Issues

  1. 1 Whether the Director lawfully refused the subsequent non-refoulement claim under s37ZO of the Immigration Ordinance
  2. 2 Whether there has been a significant change of circumstances sufficient to give the subsequent claim a realistic prospect of success
  3. 3 Whether the Director's factual findings were Wednesbury unreasonable or procedurally unfair

Ratio Decidendi

Leave to apply for judicial review was refused because the applicant failed to show a significant change of circumstances under s37ZO that, taken with prior material, would give the subsequent claim a realistic prospect of success; the Director’s factual findings were not Wednesbury unreasonable or procedurally unfair; the applicant was re-litigating previously determined facts and, absent restraint, was likely to abuse the court process, therefore a Restricted Proceedings Order was necessary to prevent further abuse.

Court Disposition

Applicant's application for leave to apply for judicial review dismissed; Restricted Proceedings Order made against applicant

Orders

  • Applicant is prohibited from commencing any fresh proceedings or continuing existing legal 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 of the High Court.