Solikhin Susiyanti v. Director of Immigration

HCAL 189/2022

[2022] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 189 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 oral submissions by the Applicant 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 11 January 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1801 of 2018 (the “previous 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 applicant appeared before the Court.

3.The applicant submitted that she had applied for legal aid, which was shown by a copy of a pink card with the date of application on 19 April 2022. Section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91 provide that the matter should be stayed for 42 days unless the court lifts the stay.

4.I had made enquiry with the applicant on the reasons of her late application as Form 86 was filed on 25 January 2022. Having consider her explanation and the merits of her case, I decided to lift the stay for the following reasons:

a.  I did not accept her explanation that her friend advised her to delay the matter for 3 months before making application to the Director of Legal Aid Department and this amounts to abuse of the process.[1]; and

b.  there is no merit in the applicant’s case.

The procedural history

5.The applicant is an illegal immigrant from Indonesia as she overstayed after her employment in Hong Kong. She surrendered to the Immigration Department and by written representation dated 5 November 2015, raised non-refoulement claim on the grounds of Torture risk under Part VIIC of the Ordinance, 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.

6.Her claim was rejected by the Director by a Notice of Decision dated 19 December 2017 in respect of her claim on Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

7.She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 24 August 2018 (the “Board’s Decision”), the Board dismissed her appeal.

8.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 August 2019 (the “Court’s Order”).

9.Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 11 December 2019.

10.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 24 March 2021.

11.Her application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 9 November 2021.

12.She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter of 16 November 2021.

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

The subsequent claim application

14.The factual basis of her previous claim is that if she is refouled, she will be harmed or killed by her husband because she intended to divorce him.

15.The Director found that her claim was not substantiated. He found that the level of risk of her being harmed or killed by her husband was assessed to be low as past experiences showed that he did not intend to harm or kill her. The state was not involved. State protection would be available to her and internal relocation would be an option open to her.

16.The Board affirmed the Director’s Decision. It further found that since she had no contact with her husband since 2006 and she had returned to Indonesia twice in 2009 and 2013 respectively, the risk as she alleged of being harmed or killed by her husband was slim. Also, she had delayed in making her claim in Hong Kong.

17.Under section 37ZO 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.

18.In support of her subsequent claim, the applicant relied upon the fact that her husband had tried to claim back her son. Her son disagreed. He then asked her to remit money to him or he would take legal action to have his son to return to him. He had also gone to the son’s family and vandalized it.

19.The Director considered that she relied upon similar facts in support of her previous claim as the risk comes from her husband for the reason that she might divorce him. The Director did not accept that there is significant change of circumstances and such information, coupled with the previous claim, would not give her subsequent claim any realistic prospect of success.

The application for leave to apply for judicial review application

20.The applicant has filed an affirmation in support of her application. She set out the grounds below.

a.  Procedural impropriety / irrationality: the Board failed to consider the Convention and make diligent investigations; the Board failed to conduct sufficient enquiry in the relevant country of origin conditions and failed to consider that her husband would harm or kill her; there was no screening for her subsequent claim and no interview for her to tell her case; the Board failed to consider that she could not return to Indonesia as it is dangerous and her husband would trace her;

b.  Error/misdirection in law: the Director did not consider her new facts for her subsequent claim and that there is risk of her life from the money lender (this is not an issue in her case); the Director failed to considered that her mother had passed away and it is painful for her and the Director failed to realize the difference between her previous claim and her new claim; the Director also failed to consider the documents she had submitted.

21.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understood the Director’s reasons for rejecting her application and she was not saying that the Director was wrong.

23.The grounds raised above are her opinions or comments. Most of them are bare allegations without evidence in support. They are not valid grounds to challenge the Director’s Decision. As to the issue of no screening for her subsequent claim, the Ordinance does not provide for screening for subsequent claim. There had been screening for her previous claim. The Director had considered her additional facts and materials for her subsequent claim. But the Director rejected them as supportive of her subsequent claim, which the Director was entitled to do.

24.It is quite clear that the applicant is re-litigating her previous claim in her subsequent claim application.

25.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.

26.Since there is no realistic chance of success in her intended judicial review of the Director’s Decision, I dismiss her application.

The RPO

27.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her previous 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.

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.

30.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. Before me, she said she understood the RPO and she had nothing to say.

31.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 previous 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, and any appeal, including this Order, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to Deputy High Court Judge K. W. Lung or in his absence, 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 Court 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 Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by this Court or 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 Court, 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)  No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge.

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

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

DISPOSITION

32.The applicant’s application is dismissed.

33.RPO in terms of paragraph 31 be made against the applicant.

Dated the 23^rd day of June 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