Case Document

100%Judiciary

HCAL 730/2021

[2021] HKCFI 2553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 730 of 2021

BETWEEN

	Fadya Kholyqumina Rizky	Applicant
	and
	Director of Immigration	Putative Respondent

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 16 April 2021 (the “Director’s Decision”) refusing her subsequent claim of HCAL 708 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

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 applicant is an illegal immigrant from Indonesia. She raised non-refoulement claim with the Immigration Department by written representation received on 15 October 2015 and written representations dated 12 October 2015, 19 October 2015 and 27 October 2015 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.Her claim was rejected by the Director by a Notice of Decision dated 9 September 2016 and Notice of Further Decision dated 8 August 2017.

5.She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 6 April 2018 (the “Board’s Decision”), the Board rejected her appeal.

6.She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 9 January 2019 (the “Court’s Order”).

7.She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 7 May 2019.

8.Her Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 14 June 2019.

9.Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 12 August 2020.

10.She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 9 September 2020.

11.By the Director’s Decision, the Director refused her application.

The subsequent claim application

12.The factual basis of her claim is that if she is refouled, she will be harmed or killed by the wife of a money lender, who found out about his plan to marry her as his second wife. She also fears the death threat from her father because she refused to marry the money lender.

13.The Director found that her claim was not substantiated. He found that the level of her being harmed or killed if she returned to Indonesia was assessed to be low; that state protection was available to her and that internal relocation was an option open to her.

14.The Board agreed with the Director. The Board also found that her evidence was inconsistent and implausible to believe and that she was unable to provide any explanation for the deficiencies. As a result, the Board rejected her alleged facts in support of her claim, including the money lender, her father’s maltreatment and considered that she had manufactured her story in order to prolong her stay in Hong Kong.

15.Under section 37 ZO of the Ordinance, she has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

16.She relied upon the information from her nephew that the debt had not been settled and her father had borrowed more money. The Director found that she had submitted no cogent evidence in support of her request for subsequent claim.

17.The Director rejected her grounds in support of her subsequent claim for the reasons that the information was hearsay evidence from her nephew, which could not be tested. The Director does not accept those are significant change of circumstances, which coupled with the original claim, would give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

18.The applicant has filed an affirmation with which she had annexed the Director’s Decision without specifying any grounds in support of her application.

19.At the hearing before me, the applicant asked the Court to allow her more time to stay in Hong Kong.

20.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

21.In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board [the Director].”

22.Her submissions in Court do not advance her case.

23.The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.Since there is no reasonable prospect of success in her subsequent claim, I dismiss her application for leave to apply for judicial review of the Director’s Decision.

The Restricted Proceedings Order

25.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.”

26.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.

27.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 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.”^{^[1]}

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.^{^[2]}

28.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, §9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, §25.

29.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.

30.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.

31.Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she wanted to stay longer.

32.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

33.The applicant’s application is dismissed.

34.A RPO in terms of paragraph 32 be made against the applicant.

Dated the 14^th day of September 2021

	(K.H. LI)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/09/2021 Fadya Kholyqumina Rizky Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/09/2021 Director of Immigration Putative Respondent’s ref. no.: L/M (21855) in ImmD RA 7/37/C (Formerly RBCZ/13942/15 & RBCZ/9002773/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)