Mariana v. Director of Immigration

HCAL 478/2022

[2022] HKCFI 2189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 478 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 26 May 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1918 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.

The procedural history

3.The applicant is an illegal immigrant from Indonesia. She came to Hong Kong as a domestic helper. Her employment was terminated.  She overstayed after her last employment in Hong Kong. On 6 August 2015, she was arrested by police for overstaying.  On 11 August 2015, she lodged non-refoulement claim on the grounds of Torture risk under Part VIIC of the Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance; Persecution risk under the Refugee Convention and BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance

4.Her claim on all applicable risks was rejected by the Director by a Notice of Decision dated 15 June 2017

5.She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 30 August 2018 (the “Board’s Decision”), the Board dismissed her appeal on all claims.

6.She applied for leave for judicial review of the Board’s Decision and her application was dismissed by the Court of the First Instance on 15 July 2020 (the “Court’s Order”).

7.Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 9 March 2021.

8.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 17 June 2021.

9.Her application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 25 February 2022.

10.She applied to the Director for making a subsequent claim by letter of 12 April 2022.

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

The subsequent claim application

12.The factual basis of her previous claim is that if refouled, she will be harmed or killed by her step-father, Budi because of family dispute.

13.The Director found that her claim was not substantiated. He found that the ill-treatment by Budi did not attain a minimum level of severity; that risk of being harmed or killed was assessed to be low; that it was only a family dispute without the state’s involvement and state protection would be available to her and that internal relocation was a viable alternative.

14.The Board affirmed the Director’s Decision. The Board found that Budi’s conduct to her was not acceptable and even amounted to attempted rape. But it was a one off incident. There was no evidence that he would harm or kill her. The Board further found that she would be safe if she relocated to live in Surabaya.

15.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.

16.In support of her subsequent claim, the lawyer of applicant submitted that her uncle had told her that her mother had given birth to two children with Budi. Budi had borrowed loan from the bank. He was unable to repay. He told the applicant’s mother to repay the loan. Her mother asked for money from her. She did not have money. The bank also threatened her mother to pay the debt or she would be put in prison. She is therefore afraid of Budi and the Bank now.

17.The Director has considered the additional information. He takes the view that there is no evidence to show that Budi or the Bank would harm or kill her. The Bank is to press her mother for repayment of the loan, not her. The Director therefore 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

18.The applicant has filed an affirmation in support of her application, in which she did not set out any ground.

19.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).

20.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 did not mean that the Director was wrong in making the Decision.

21.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.

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

The RPO

23.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.

24.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.

25.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.

26.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 had nothing to say.

27.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

28.The applicant’s application is dismissed.

29.RPO in terms of paragraph 27 be made against the applicant.

Dated the 19^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