Laela Fitriani v. Director of Immigration

HCAL 884/2022

[2022] HKCFI 3241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 884 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 August 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1905 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 procedural history

3.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in 2010 and was permitted to stay until 22 June 2012. Her employment was terminated prematurely on 1 January 2012. She overstayed and was arrested on 18 February 2016 for breach of condition of stay and taking up unapproved employment. She was convicted and sentenced to 5 months’ imprisonment. She lodged her non-refoulement claim on 30 May 2016 on the grounds of Torture risk under the Ordinance; 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.

4.Her claim was rejected by the Director by a Notice of Decision dated 23 January 2018.

5.She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 31 August 2018 (the “Board’s Decision”), the Board rejected her appeal on all applicable grounds.

6.She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 8 May 2020 (the “Court’s Order”).

7.She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 1 April 2021.

8.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 17 August 2021.

9.Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 30 May 2022.

10.She applied to the Director for making a subsequent claim for non-refoulement protection by letters dated 5 July 2022 and 6 July 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 she is refouled, she would be killed by a man, Adi, who had sexually harassed her and she would be pressed by her creditor Anoh for repayment of the debt she borrowed from him.

13.The Director found that her claim was not substantiated. She appealed to the Board.

14.The Board considered the applicant’s case and found that it accepted most parts of her stories, in particular, it accepted that she was molested and even raped by Adi and she would be pressed for repayment of loan from a creditor called Anoh. Based upon those accepted facts, the Board found that the sexual harassment and rape did not fall within the context of section 37U of the Ordinance relating to torture [60] and that such acts did not involve any government official in any official capacity [60]; that there was no evidence that Anoh would torture her for the debt [61]; that there would be state protection for her in Indonesia [63] and that it did not accept that there was a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia [63]. The Board further found that there was no evidence to suggest that the applicant would be sentenced to death for any criminal offence in Indonesia under the BOR 2 risk [67]. For the same reasons above, the Board did not accept that the applicant would face a real risk of severe pain or suffering amounting to BOR 2 risk and that state protection would be available to her for her fear of sexual molestation by Adi [77]. As to Persecution under RC, the Board found that having accepted that the applicant would be subjected to rape or sexual assault by Adi, it found it hard to say that those acts were covered under any of the five Convention grounds [90] and that state protection should be available and she could relocate herself to other parts of Indonesia [90 & 91]. The references refer to the Board’s Decision.

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 submitted a statement to the immigration officer, in which she said that she would be subjected to harm or even be killed by Anoh for the debt unpaid and her mother’s boyfriend Kudet, who has been molesting her by phone, asking her to return to Indonesia to marry someone she has never seen before. She further said that Kudet had already married her sister off in Indonesia.

17.The Director did not accept that those are new circumstances because the issue of Anoh had been considered in the previous claim. Kudet’s threat is hearsay information, which is far-fetched and she can have state protection herself.

18.The Director therefore does not accept that there is significant change of circumstances, which, coupled with the previous claim, will not give the subsequent claim a realistic prospect of success of her subsequent claim.

The application for leave to apply for judicial review application

19.The applicant has filed an affirmation in support of her application. She attached the Director’s Decision without raising any ground.

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. Before me, the applicant said she just pleaded more time to stay in Hong Kong.

22.As to the grounds under paragraph 19 above, there is no valid ground from the applicant to challenge the Director’s Decision.

23.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.

24.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

25.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.

26.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.

27.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.

28.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.

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

30.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 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

31.The applicant’s application is dismissed.

32.RPO in terms of paragraph 30 be made against the applicant.

Dated the 20^th day of October 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