Vijay Kumar and Others v. Director of Immigration

HCAL 791/2021

[2021] HKCFI 3097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 791 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 9 February 2021 refused;

2.  The application for leave to apply for Judicial Review dismissed; and

3.  A Restricted Proceedings Order (RPO) be made against the Applicants.

Observations for the Applicants:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 9 February 2021 refusing to allow the Applicants to make a subsequent claim for non-refoulement protection after their earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The 1^st and 2^nd Applicants are husband and wife of Indian nationality who travelled from India to Hong Kong on 3 October 2015 with permission to stay as visitors until 17 October 2015 when they did not depart and instead overstayed and were arrested by police on 19 October 2015.  After they were referred to the Immigration Department for investigation, they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the brother of the 1^st Applicant (“A1”) over their land dispute in his home district, and after the 2^nd Applicant (“A2”) had given birth to their daughters, the 3^rd Applicant (“A3”) in November 2015 and the 4^th Applicant (“A4”) in August 2017, they also raised a non-refoulement claim for each of them on the same bases as their own claims.

Previous Non-Refoulement Claim

3.By Notice of Decision dated 24 August 2016 and 1 August 2017 (for A1, A2 and A3), and dated 23 January 2019 (for A4) the Director rejected the claims of the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicants’ claims and found that the land in dispute was owed by A1’s father which A1’s brother could not obtain by harming him or his family, that it was in any event a private family dispute between them without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his family to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his brother to locate them.

5.The Applicants’ appeals against the Director’s decisions were dismissed by the Board on 30 November 2017 and 2 June 2020 (for A4) after hearing both A1 and A2 in evidence and submissions and upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decisions.

6.The application by A1 and A2 for leave to apply for judicial review of the decisions of the Director and the Board was also refused by this court on 31 August 2018 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Director or the Board or in their decisions, and that there was no prospect of success in their intended application (HCAL 1032 & 1033 of 2017 [2018] HKCFI 1977).

7.Their subsequent appeals against the court’s decision was dismissed by the Court of Appeal on 22 February 2019 (CACV 441 & 442 of 2018 [2019] HKCA 198).

8.Their notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 28 May 2019 ([2019] HKCA 602), and then by the Appeal Committee of the Court of Final Appeal in October 2020 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Shortly thereafter on 23 October 2020 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that A1’s brother is still intending to harm or kill them so as to inherit the entire estate of their father, plus a new fear of harm from A1’s family and the Indian authorities over A2’s recent support since August 2020 of a Sikh separatist movement known as Khalistan movement for the establishment of an independent state for the Sikh population in the Punjab region which has however been outlawed by the Indian government and opposed by A1’s family and hence they fear that they will be harmed and persecuted by A1’s family or the Indian authorities if refouled to their home country.   

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from the Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 9 February 2021 the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis thereof was essentially the same as that of their previous claim as regard risk of harm from A1’s brother and that they failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claim was determined, or that those changes when taken together with the material previously submitted in support of their previous claim would give their subsequent claim any realistic prospect of success.

13.As regard their claim of fear of harm from A1’s family or the Indian authorities over A2’s alleged support of the outlawed Khalistan movement since August 2020, the Director found no evidence of any such involvement of A2 in the movement other than bare assertions, and that in any event any such support of A2 while being thousands of miles away from India in Hong Kong and over such a short period of time should be of no significance at all that it is simply just the Applicants’ own baseless speculations that it may attract any attention from the Indian authorities that it is not accepted that there has been any significant change of circumstances since the Applicants’ previous claim was finally determined or that such change would give the subsequent claim any realistic prospect of success either.      

14.The Applicants on 28 May 2021 filed another Form 86 (dated 10 March 2021) in these proceedings for leave to apply for judicial review of the Director’s decision, and in their supporting affirmation filed on the same day they put forth the following intended grounds for their intended challenge:

(1) That the Director erred in determining that there is no realistic prospect of success in their subsequent claim by placing an unnecessarily high threshold in determining realistic prospect of success;

(2) That the Director has not taken their unique situation into account fairly or carefully;

(3) That the Director’s decision in not allowing them to make a subsequent claim is erroneous and biased by failing to rely on the facts of their case and by purely targeting them for a situation that they have not experienced first-hand;

(4) That the Director’s decision was biased and was based on wrong case management by trying to dispose of their case as quickly as possible and therefore did not carefully consider all the information and evidence available; and

(5) That it is procedurally unfair not to allow them to appeal against the Director’s decision to the Board as all decisions of the Director should be subject to review by the Board regardless of the nature of decision.

15.By then however the Applicants were out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.As the last day of the three-month period for then to file their Form 86 fell on 9 May 2021, the Applicants were therefore 19 days late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

17.In the Applicants’ case, a delay of 19 days cannot be regarded as insignificant, especially when it was obviously not the first time for A1 or A2 to seek leave to apply for judicial review, and for which they did not provide any explanation either in their supporting affirmation or at the hearing of their application, and as the record show that the decision was to their lawyer from DLS without being returned through undelivered post, I am unable to see any good reason for their delay.

18.As for the merits of their intended application, the proposed grounds for their intended challenge are mainly just vague and broad assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case, or in what way did the Director place unnecessarily high threshold in his determination of realistic of success or fail to take into account of their unique situation fairly or carefully, or how was his decision biased or based on wrong case management, or what available information or evidence of their case that the Director had failed to carefully consider in his decision.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicants, and as such I do not find any of them reasonably arguable for their intended challenge.

19.As for their last complaint of not being allowed to first bring an appeal against the Director’s decision to the Board, it is simply not provided by Section 37ZR of the Immigration Ordinance for appealing against such a decision of the Director to refuse the request to make a subsequent claim, and hence there is simply no legal basis for this complaint of the Applicants either.   

20.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicants’ request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I accordingly refuse to extend time and dismiss their leave application.

Restricted Proceedings Order

21.Given the facts that the Applicants’ non-refoulement claims have already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal in October 2020, but that the Applicants are still trying to re-litigate their case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

22.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

  (1)  The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a)  no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)  any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

  (2)  The Court of First Instance may not make an order under subsection (1) unless –

(a)  it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)  it has heard the person against whom the order is to be made or given him an opportunity of being heard.

  (3)  An order made under subsection (1) –

(a)  may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)  may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

23.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

24.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

25.In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against them, they will likely continue to do so and thereby wasting further precious time and resources of the Judiciary.

26.Accordingly, I make the following order:

(1) The Applicants 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 Applicants 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 Applicants do notify in writing each intended defendant or respondent of their 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 Applicants from any such intended defendant or respondent, that the Applicants do file a copy of each such response together with their 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 Applicants 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 Applicants 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 Applicants 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; and

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

Disposition 

27.The Applicants’ application for leave to apply for judicial review is dismissed.

28.A RPO in terms of paragraph 26 be made against the Applicants.  

Dated the 18^th day of October 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