Padaco Rosemarie Odlos v. Director of Immigration

HCAL 1257/2021

[2021] HKCFI 3013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1257 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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration (the “Director”).

2.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 26 August 2021 (“the Director’s Decision”) refusing her subsequent claim of HCAL 1612 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

3.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.

4.There is a memorandum dated 13 September 2021 from the Director of Legal Aid that the applicant has applied for legal aid.  Under section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91 & 91A, the matter should be adjourned for 42 days.  The Court has the discretion to lift this statutory stay of proceedings, such discretion has to be exercised judiciously. In The China State Bank Ltd v Wong Chun Ying trading as Wing Fung Hong Company HCA 10825/1999, Hon Waung J. in Chambers, 6 April 2000, held that the questions to be asked are whether there might be some merits to the party applying for legal aid and whether there is any reason for justification for the late application. In my view, if the proceedings are clearly an abuse of the court proceedings, the statutory stay should be lifted in order to prevent the proceedings from being further abused by delay.

5.Re-litigating the same matter without valid legal reasons is an abuse of the Court’s process. See Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 at [2] & Re Paswan Shibu Lal [2018] HKCA 249 §15.  As can be seen below, the applicant is re-litigating her original claim in her subsequent claim application.  I therefore decide to lift the statutory stay under section 15 of the Legal Aid Ordinance, Cap. 91. The matter should proceed accordingly.

The procedural history  

6.The applicant is an illegal immigrant from the Philippines. She first raised torture claim with the Director on 20 April 2011 and on 24 November 2011 her application was rejected. She then raised non-refoulement claim with the Immigration Department by written representation dated 7 March 2014 on the grounds of 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.

7.Her claim was rejected by the Director by a Notice of Decision dated 25 August 2017.

8.She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 9 August 2018 (the “Board’s Decision”), the Board dismissed her appeal.

9.She applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 16 July 2019 (the “Court’s Order”).

10.She appealed against the Court’s Order to the Court of Appeal and her application was dismissed by the Court of Appeal on 29 November 2019.

11.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 9 June 2020.

12.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 4 June 2021.

13.She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter of 15 June 2021.

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

The subsequent claim application

15.The factual basis of her claim is that if refouled, she will be harmed or killed by James Dondogan (“James”), the driver who caused her nephew’s death in a car accident as she would disclose his identity.

16.The Director found that her claim was not substantiated. He found that there was no evidence for believing that if refouled, she would be subjected to the risks as she alledged; that reasonable state protection was available to her and that internal relocation was an option open to her.

17.The Board affirmed the Director’s Decision. The Board further found that her evidence was not credible because there were contradictions in the key parts of her evidence. She did not seek protection immediately after her arrival in Hong Kong.

18.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.

19.She relied upon the information from her friend in the Philippines that James is still free and he is looking for her. She also concerns COVID-19 in the Philippines.

20.The Director does not accept that there is significant change of circumstances. Such information, coupled with the original claim, would not give her subsequent claim a realistic prospect of success. COVID -19 is a worldwide issue, not confined to the Philippines.

The application for leave to apply for judicial review

21.The applicant has filed an affirmation in support of her application. She has set out the grounds as follows:

a. the Director’s Decision was biased and based on the wrong case management and he did not consider her case carefully with all the information and evidence available;

b. the Director had set the threshold in determining the realistic prospect of success too high, especially human lives are at stake;

c. the Director did not rely on any facts of the case in making his decision;

d. there was no interview by the immigration officer; and

e. there was no appeal to the Torture Claims Appeal Board, contrary to the principles of fairness and justice.

22.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

23.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant had nothing to say.

24.Grounds 21 a. to c. are her opinions or comments without any evidence in support of them. Grounds d. and e. are the procedures provided under the Ordinance. Under section 37ZP, which refers to section 37X, the immigration officer can rely upon written statement from the applicant. There is no mandatory interview for the applicant. According to the Director’s Decision, she was represented by duty lawyer for her subsequent claim application. The applicant has not submitted any authority to support her claim that there being no appeal to the Torture Claims Appeal Board is contrary to the principles of fairness and justice. This is her subsequent claim deriving from her original claim, which has gone through the procedure of appeal to the Board. The applicant can still apply for leave for judicial review of the Director’s Decision, which is her application before me now. There is nothing amiss in this procedure.

25.The Director is entitled to reach his conclusion after considering her evidence as he did in this case. The applicant has raised no valid challenge to the Director’s Decision or finding of the facts.

26.It is clear that the applicant is re-litigating her original claim in her subsequent claim application

27.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.

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

The RPO

29.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her original claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against her. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

30.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.

31.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.

32.For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against her. The applicant has been explained the proposed restricted proceedings order before this hearing.

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

34.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 of the original claim 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

35.The applicant’s application is dismissed.

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

Dated the 21^st 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