Read the full judgment text of HCAL 442/2021 on BabelCite. This Court of First Instance judgment was delivered on 6 July 2021 before Chow JA.
Administrative and constitutional law – non-refoulement claim – subsequent claim – unified screening mechanism – refusal by Director of Immigration – application for leave to apply for judicial review – whether intended grounds are reasonably arguable – restricted proceedings order – inherent jurisdiction of the court – abuse of process – vexatious re-litigation – Indonesian national – overstayer – alleged risk of harm by creditor in Indonesia. Application for leave to apply for judicial review of the Director of Immigration's refusal to permit a subsequent non-refoulement claim – held: leave refused because none of the four intended grounds was reasonably arguable – the Director's consideration of the subsequent claim request constituted a form of screening that did not have to take any particular form, with no legal duty to interview the Applicant or hold an oral hearing – no law confers a right of appeal to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office against the Director's refusal – the Applicant's lack of legal representation is not a ground of judicial review – whether the Applicant is a genuine non-refoulement claimant is not a matter for fresh determination on judicial review, which is concerned only with legality, rationality, and procedural propriety. Whether a restricted proceedings order should be made – held: yes, the court exercised its inherent jurisdiction to make a restricted proceedings order for a period of 5 years – following Etik Iswanti v Torture Claim Appeal Board [2021] HKCFI 1589 and applying the principles in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 and Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679 – the Applicant's persistent re-litigation of her non-refoulement claim, based on the same allegation of risk from a creditor in Indonesia, through HCAL 194/2018, CACV 517/2018, FAMV 171/2019, and the present application, amounted to an abuse of process. Restricted proceedings order made prohibiting the Applicant from commencing or continuing any proceedings relating to her non-refoulement claim without leave of the Court of First Instance, with leave applications to be made to the designated Judge on paper, no more than one such application to be made within any 3-month period, and the order to cease to have effect at the end of 5 years. No order as to costs.
Legal issues: Whether leave to apply for judicial review should be granted in respect of the Director's refusal of a subsequent non-refoulement claim · Whether a restricted proceedings order should be made against the Applicant to prevent further vexatious re-litigation of her non-refoulement claim
Outcome: Application for leave to apply for judicial review dismissed; restricted proceedings order made against the Applicant for a period of 5 years; no order as to costs.
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