Dewi Anggraeni and Another v. Director of Immigration

HCAL 43/2022

[2022] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 43 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 the Applicants being absent 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 applicants.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, her daughter aged 6. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 21 December 2021 (the “Director’s Decision”) refusing their subsequent claim of HCAL 752 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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.

3.However, the applicants were absent without any prior notice to the Court. The Court has given advice to the 1^st applicant to obtain legal representation in view of the minor in this case. In the circumstances, the Court decided to deal with the application on paper.

The procedural history

4.The 1^st applicant is an illegal immigrant from Indonesia by way of overstaying. She came to Hong Kong to work as a domestic helper. Her contract was prematurely terminated on 7 October 2012. She did not return to her country and overstayed in Hong Kong. She was arrested by police and she lodged a non-refoulement claim on 11 March 2014. She gave birth to the 2^nd applicant on 29 July 2015. She made a joint non-refoulement claim together with her daughter, the 2^nd applicant. Their joint claim was then considered under the unified screening mechanism on the grounds of Torture risk under 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.

5.Their claim was rejected by the Director by a Notice of Decision dated 28 August 2017.

6.They appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 23 April 2018 (the “Board’s Decision”), the Board dismissed his appeal.

7.They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 30 April 2019.

8.Their appeal against the Court’s Order was dismissed by the Court of Appeal on 9 September 2019.

9.Their 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 25 March 2020.

10.Their 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 19 August 2021.

11.They applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 8 October 2021.

12.By the Director’s Decision, the Director refused their application.

The subsequent claim application

13.As this is the family’s joint application, the family relied upon the 1^st applicant’s facts. The factual basis of her previous claim is that if refouled, she would be harmed by her stepmother and her daughter will be discriminated by her stepmother and people in her village. She also fears of the money lender of her stepmother.

14.The Director found that her claim was not substantiated and not believable as shown by the past experiences between herself and her stepmother. There is country of origin information which show that there are government facilities for the 1^st applicant and her daughter for their protection and welfare.

15.On behalf of herself and her family, she appealed the Director’s Decision to the Board. The Board agreed with the Director. It further found that the 1^st applicant is not an honest witness and she had fabricated her story to create her claim for protection.

16.Under section 37ZO of the Ordinance, the applicants have 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.

17.In support of their subsequent claim, the 1^st applicant relies upon the same facts, that is to say, her stepmother will harm her, she will be discriminated by her stepmother and the villagers will, because of her daughter was born out of wedlock, discriminate her daughter. All these issues had been considered by the Director and the Board in her previous claim.

18.The Director found that the applicants rely upon the same or similar facts in support of their subsequent claim, such facts, when considered together with their previous claim, will not give them a realistic chance of success in their subsequent claim. He dismissed the applicants’ subsequent claim application.

The application for leave to apply for judicial review

19.The 1^st applicant has filed an affirmation in support of their application. She enclosed a copy of the Director’s Decision without setting out any ground.

DISCUSSION

20.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).

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

22.I note that there is a minor in this case and she was not legally represented before the Director or this Court. Her case was considered by the Director with separate consideration. The Director had taken into consideration the social welfare facilities for the 1^st applicant and her daughter and the medical care facilities for her. It appears to me that there is no other underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Director. I shall treat the non-legal representation for the minor as a mere irregularity, relying upon the decision of the Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

23.The conditions in the Court of Appeal case apply to this case. The Director had had separate consideration for the minor in his assessment of the case. The applicants were legally represented at the screening stage of the previous claim. They did not raise any child specific issue for the Director. Nor have they raised any child specific issue for this Court after the 1^st applicant had been advised of the minor issue. I shall therefore treat the lack of legal representation of the minor as procedural irregularity only under Order 2, rule 2 of the RHC.

24.The 1st applicant is unable to show any valid reason to challenge the Director’s Decision.

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 prospect of success in their subsequent claim, I dismiss their application for leave to apply for judicial review of the Director’s Decision.

The RPO

27.The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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 applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their 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 applicants to appear before it to show cause why RPO should not be made against them. The 1^st applicant represented the 2^nd applicant. She has been explained the proposed restricted proceedings order before this hearing.

31.As the applicants were absent without prior notice to the Court, I shall treat them as waiving their right to make submissions to the Court in relation of the proposed RPO.

32.I am satisfied that, if not restrained, it is likely that the applicants would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below. The reference to the Applicant will cover the 1^st applicant and the 2^nd applicant in this case.

(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

33.The applicants’ application is dismissed.

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

Dated the 5^th day of July 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