Cao Thi Hau v. Immigration Department and Another

HCAL 942/2020

[2020] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 942 OF 2020

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.The Applicant is a national of Vietnam who entered Hong Kong illegally on 11 August 2015 and was arrested by police on 13 August 2015.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.     

2.By a Notice of Decision dated 2 September 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

3.By a Notice of Further Decision dated 28 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

4.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, and on 29 October 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

5.On 6 August 2019 the Applicant filed her amended Form 86 under HCAL 632/2018 for leave to apply for judicial review of both the decisions of the Director and the Board but without putting forward any proper ground for seeking relief in her Form or her supporting affirmation other than a regurgitation of her claim as before.

6.On 10 September 2019 I refused to grant leave to the Applicant’s application upon finding that she had failed to present any proper ground for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director or the Board or in their decisions or any failure on their part to apply high standards of fairness in their determination of her claim, and that there was no reasonable prospect of success in her intended application.

7.The Applicant then lodged an appeal to the Court of Appeal under CACV 443/2019 against that decision, but her appeal was dismissed on 3 January 2020, while her subsequent Notice of Motion for leave to appeal to the Court of Final Appeal was also refused.

8.However, on 20 May 2020 the Applicant filed another Form 86 under these proceedings for leave to apply for judicial review again of the same decisions of the Director and the Board, and again without putting forward any proper grounds for her intended challenge. 

9.Clearly the principle of res judicata applies, and it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same decisions of the Director and the Board after she failed to obtain leave from this court under HCAL 632/2018 and had exhausted all the appeal processes, and also for failing to inform the registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.   

10.For these reasons this second leave application for judicial review of the decisions of the Director and the Board by the Applicant is hereby struck out and dismissed.

Dated the 10^th day of August 2020.

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

Form CALL-1