Umi Latifah v. Director of Immigration

HCAL 60/2022

[2022] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 60 of 2022

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 against the Director’s Decision be granted; and

2.         The applicant shall within 14 days after the grant of this order take out the originating summons in accordance with Order 53, rule 5(5) of the RHC.

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 22 November 2021 (the “Director’s Decision”) refusing her subsequent claim of HCAL 799 of 2017 (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 by written representation which was received by the Immigration Department on 23 September 2013 on the grounds of Torture risk; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.She failed to return the Non-refoulement Claim Form (NCF) within time as directed by the Director and her application was deemed to have been withdrawn on 8 August 2014.

5.She applied to re-open her claim by written representation dated 11 November 2015. Again, she was directed to provide necessary information to support her application on or before 15 December 2015. Again, she failed to comply with the direction. The Director therefore refused to re-open her claim.

6.She appealed to the Board against the Director’s said decision and her appeal was dismissed on 13 October 2017 (“the Board’s Decision”).

7.Her application for leave to apply to review the Board’s Decision was dismissed by the Court of the First Instance on 12 November 2018 (the Court’s Order”).

8.Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 25 June 2019.

9.Her notice of motion for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 11 August 2020.

10.Her application to the Court of Final Appeal for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 21 September 2021.

11.She applied to the Director for making a non-refoulement claim protection by written representation dated 20 April 2021, which the Director treated as a subsequent claim for non-refoulement protection.

12.The Director assess her application on the basis of the submission from the Duty Lawyer’s Scheme, her NCF dated 4 August 2021 and the screening interview on 6 September 2021.

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

The subsequent claim application

14.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.

15.According to the procedural history above, the Director had not assessed the applicant’s application on the merits of her case before this application, which the Director treats it as an application for subsequent claim. However, I am unable to accept the Director’s label because it is not consistent with section 37ZO of the Ordinance.

16.The Court of Appeal in its Judgment dated 25 June 2019 referred to in paragraph 8 above, has found at paragraph 15:

“…Neither the Director, the Board nor the Judge considered the applicant’s case on merits as the applicant had failed to complete her NCF and her case was thus deemed to the withdrawn. The Judge had rightly confirmed the Board’s decision that the applicant had failed to provide sufficient evidence as required to explain her failure to return a completed NCF due to circumstances beyond her control. …”

DISCUSSION

17.As the Director had treated her claim as a subsequent claim, his decision is not subject to appeal to the Board under section 37ZR of the Ordinance, which only allows decision not to re-open a torture claim, decision rejecting a torture claim or revocation decision made by an immigration officer. The applicant will therefore be deprived of her right to take the matter to the Board for evaluation as the Board has the dual powers of fact-finding and determination on the appeal.

18.The Director’s Decision was made on an error of the law and also would cause procedural unfairness to the applicant.

19.On this basis, I consider that the applicant has realistic prospect of success in her intended application for leave for judicial review of the Director’s Decision.

20.I have taken on board the procedural abuse by the applicant in her uncooperative attitude to the Director for processing of her case and also her various applications to the Board and all the way to the Court of Final Appeal. I consider all these cannot justify deprivation of the applicant’s right under the Ordinance.

21.In the circumstances, I give leave to the application to apply for judicial review against the Director’s Decision.

22.The applicant shall within 14 days after the grant of this order take out the originating summons in accordance with Order 53, rule 5(5) of the RHC.

Dated the 8^th day of March 2022

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