Musafaqoh v. Director of Immigration

HCAL 452/2021

[2021] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 452 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   Leave to apply for Judicial Review be refused; and

2.   A Restricted Proceedings Order (RPO) be made against the applicant

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 19 March 2021 (the “Director’s Decision”) refusing her application for re-opening her claim in HCAL 126 of 2018 (the “original claim”) under section 37Y(2) of the Immigration Ordinance, Cap. 115 (the “Ordinance”), which provides that the applicant has to provide sufficient evidence in writing to satisfy the immigration officer that due to circumstances beyond her control, she had not been able to return a completed torture claim form.

2.The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against her since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert her non-refoulement claim on the same facts of the case, thereby abusing the legal process.

The procedural history

3.The matter started from the applicant’s non-refoulement claim to the Director of Immigration, the Torture Claims Appeal Board, the Court in HCAL 126 of 2018 to the Court of Appeal.  I shall cite the relevant parts of the judgment of the Court of Appeal in Musafaqoh [2018] HKCA 962 as the procedural background of this case:

“Background

3. The applicant is an Indonesian national. She came to Hong Kong to work as a domestic helper between 17 March 2011 to 3 November 2012. Upon the expiry of her working visa, she did not leave and overstayed since 18 November 2012. On 19 August 2013, she raised a non-refoulement claim. The claim was based on her fear of risk of harm in Indonesia because of a land dispute with her family members, but she subsequently added that she was at risk of harm or death from the family members because of her sexuality. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1562. We shall not repeat the same here.

4. On 26 November 2014, the Immigration Department served a Notice and a blank non-refoulement claim form (“NCF”) on the applicant and asked her to complete the NCF within 28 days. On 27 November 2014, a lawyer was assigned by the Duty Lawyer Service (“DLS”) to assist the applicant to fill in the NCF. On 13 January 2015, the DLS informed the Immigration Department that they had received no instructions from the applicant and that they therefore ceased to act for the applicant. As there was no completed NCF, on 15 January 2015 the Director considered the applicant had withdrawn her claim.

5. On 2 September 2015, the applicant through DLS requested the Director to reopen her claim. The applicant alleged that she had lost her mobile phone and due to her meagre means she could not contact the DLS. In a letter dated 22 September 2015, the Applicant further told the Director that she had provided a wrong address to the Director, and that she had not received the blank NCF or the withdrawal notification dated 16 January 2015.

6. On 19 October 2015, the Director refused to reopen the applicant’s claim.

7. On 30 October 2015, the applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 24 October 2017, the Board dismissed the appeal on 29 December 2017. The Board did not accept the applicant’s case that she was unable to contact DLS as she had been living in Hong Kong for more than 5 years and it was hard to believe that she had no ability to contact DLS. The Board further found that the applicant had in fact received a copy of the withdrawal notification when she reported to the Ma Tau Kok Report (Recognizance) Office on 26 January 2015 and she went to the DLS office on 29 January 2015 to seek assistance. It was thus implausible that the applicant would then fail to contact DLS for seven months until she went to the DLS again on 1 September 2015. Having considered the evidence as a whole, the Board found at [17] of the Board’s decision that the applicant failed to establish that due to circumstances beyond the applicant’s control, she had not been able to return the completed form so that the Director was justified, pursuant to section 37ZG(3) of the Immigration Ordinance (Cap 115), in refusing to re-open the claim. The adjudicator also considered that the applicant had failed to establish that the claim should be reopened pursuant to section 37ZE of the Ordinance.

The Judge’s decision

8. The intended application for judicial review was in respect of the decision of the Board. The Form 86 filed on 26 January 2018 did not contain any grounds for seeking relief. In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1) Failing to make sufficient and proper inquiry into the Country of Origin Information (“COI”).

(2) Failing to take into account and put sufficient weight on the relevant COI; cherry picked and put weight on COI which was of little or no relevance to the applicant’s case.

(3) Failing to evaluate and make a finding if a consistent pattern of gross, flagrant or mass violations of human rights existed in Indonesia.

(4) Failing to assess if state protection exists in Indonesia.

(5) Making irrational decision by taking into account irrelevant considerations and failed to take into account on facts and inferences that were favourable to the applicant.

(6) Failing to call for psychological and psychiatric reports of the applicant.

(7) Applying incorrect standard of proof in making decision.

(8) There was a lack of legal representation.

9. On 16 July 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [25] – [36] for his refusal to grant leave:

“Discussion

25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

26. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[1]

27. The Applicant had stated a number of grounds for her application for leave for judicial review. The grounds were simply not to the point. The Director and the Adjudicator had not considered the Applicant's non-refoulement claim with respect to its merits. The Applicant failed to return a completed NCF to the Director within the time allowed by the Director. Her claim was thus deemed as having been withdrawn. When the Applicant later applied to reopen her claim, the Director considered she had not provided sufficient evidence to justify that she had not been able to return a completed NCF as required due to circumstances beyond her control. The Director refused to reopen the Applicant's claim. The Adjudicator endorsed the Director’s decision and dismissed the Applicant's appeal.

Submission of claim form

28. Section 37Y of the Immigration Ordinance Cap. 115 states:

(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may –

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it would be unjust not to allow a further period for the claimant to return the completed form, allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.

Deemed withdrawal of claim on failure to return completed claim form

29. Section 37ZG of the Immigration Ordinance Cap. 115 states:

(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

30. The Applicant failed to return a completed claim form by the extended deadline of 14 January 2015. The Applicant's claim must then be treated as having been withdrawn according to s.37ZG(1) of Cap. 115. The Director duly issued a written notice of the deemed withdrawal. The Applicant got the notice on 26 January 2015 when she reported to the Director for recognizance.

31. The Applicant could apply to the Director to reopen he claim. However, she must provide sufficient evidence in writing to satisfy the Director that it was due to circumstances beyond her control that she had not been able to return a completed claim form as required.

32. The Applicant alleged she had lost her mobile phone. She had no money to buy a new phone or pay for mobile service. She called DLS a few times by paid public phone but mistakenly dialled the wrong number. She also said it would be too expensive for her to go to DLS frequently.

33. Assuming the Applicant had really lost her mobile phone and she was of meagre means, there was still no reason for her to lose contact with DLS and to fail to return a completed claim form to the Director by the extended deadline of 14 January 2015. Such failure must be deemed as withdrawal of her claim according to s. 37ZG(1) of Cap. 115.

34. The Applicant may apply to reopen her claim but she must provide sufficient evidence in writing to satisfy the Director that due to circumstances beyond her control she had not been able to return a completed claim form as required. The excuses given by the Applicant were not reasonable and therefore could not constitute circumstances beyond her control that made her unable to return a completed claim form as required. If the Applicant really got the DLS phone number wrong, she could go to the Immigration Department to ask for the right number for contact. Or simpler still, she could go to DLS early to give instruction to DLS to have the claim form completed and sent to the Director in time. Instead, she sat on the matter for much time. She went to DLS once in late January 2015, then failed to contact DLS for 7 months before she contacted DLS again only in September 2015.

35. The Director deemed the Applicant’s claim as having been withdrawn. He later refused to reopen the Applicant's claim. The Adjudicator’s endorsed the Director's decision. I have reviewed the Director's decision and Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied their decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

36.  The Applicant's complaints are not reasonably arguable.  She has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant her leave for the review.”

The appeal

10.    The Notice of Appeal filed on 24 July 2018 did not contain any grounds of appeal.  In the applicant’s supporting affirmation filed on the same day, she advanced the following grounds of appeal:

“The grounds of my application are as follows: -

The Honourable Deputy High Court Judge Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

The Honourable Deputy High Court Judge Josiah Lam failed to provide detailed reason in support of her (sic) decision.”

11.    Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Director and the Board which are the same as those advanced before the Judge.”

4.The Court of Appeal dismissed her appeal.

5.She applied to the Director again by letter dated 16 March 2021, saying that her application for re-opening of her case should not be rejected without hearing.  She considered that the Director should consider her case and cannot remove her to her country without her consent.

6.By letter dated 19 March 2021, the Director replied to her letter, saying that as her non-refoulement claims had been determined, no further action will be taken at that stage.

7.Instead of appealing to the Torture Claims Appeal Board, the applicant applied for leave to apply for judicial review of the Director’s Decision.

8.This application is apparently an abuse of process as the applicant is attempting to re-litigate her case by bringing a second judicial review in respect of the same dispute, which had been determined by the Torture Claims Appeal Board, the Court and the Court of Appeal.  The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. V Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020:

“28. It is well settled that 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 Board decision, see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16]; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22].”

9.The application’s application is therefore dismissed.

The Restricted Proceedings Order

10.In accordance with Practice Direction 11.3, RPO should be made under the following circumstances:

“8. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”

11.As shown by the procedural history above, it is plain that the applicant refused to accept the unfavourable decisions made by the Director, the Board and the courts.

12.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her claim for a subsequent claim, categorically fitting in the description of

“the vexatious litigants typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.”^[2]

The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a restricted proceedings order (“RPO”) and the extended order against her.^[3] 

13.RPO is appropriate for the present case.  See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Director of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129.

14.In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as her intention is clearly an abuse of the process.  The application should be viewed together with the procedural history of the case.  The Court should take preventive measures against any abuse.

15.For this reason, the Court has called upon the applicant to appear before it to show cause why a RPO should not be made against her.  The applicant has been explained the proposed RPO by the court interpreter outside this court before hearing.

16.Upon being requested to show cause why the Court should not make the RPO against her, the applicant said that she had nothing to say.

17.Having considered the applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings on the same facts for the sole purpose of remaining in Hong Kong only.  I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same.

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct.

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)  Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)  No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)  This order shall cease to have effect at the end of 5 years from the date of this order.

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

18.The applicant’s application is dismissed.

19.A RPO in terms of paragraph 17 be made against the applicant.

Dated the 14^th day of September 2021

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

[1] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[2] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1, §48

[3] Ibid §§7 & 8