Nur-khasanah v. Director of Immigration

HCAL 928/2022

[2023] HKCFI 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 928 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 12 May 2022 be refused;

2.   The application for leave to apply for Judicial Review be dismissed; and

3.   A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 12 May 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 9 August 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 August 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 14 November 2015, she did not depart and instead overstayed in Hong Kong, and on 14 December 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to send him money for his use.

Previous Non-Refoulement Claim  

3.By a Notice of Decision dated 18 January 2018 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than mere verbal abuse to press her for more money, that in any event it was a private domestic dispute between the two of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 26 September 2018 after hearing her in evidence and submissions and upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 19 August 2020 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 2115/2018 [2020] HKCFI 2030).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 29 April 2021 (CACV 421/2020 [2021] HKCA 580).

8.The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 7 June 2021 ([2021] HKCA 833), and then by the Appeal Committee of the Court of Final Appeal on 21 January 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Less than 1 week later on 27 January 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that her husband has formed a new family with another woman in Indonesia that the Applicant no longer has any home or family to go to if refouled to her home country.

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, on 18 February 2022 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did on 1 March 2022 with a letter with documents in support of her request.

12.By a Notice of Decision dated 12 May 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success, as those documents provided by her all related to news about domestic violence by husbands against wives in Indonesia which would not assist or advance her subsequent claim given the correct findings by both the Director and the Board in her previous claim of the availability of both state/police protection and internal relocation to her to negate such risk upon her return to Indonesia.

13.On 14 September 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation filed on the same day to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, but in her subsequent written submissions dated 26 September 2022, she put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Director had unlawfully fettered his discretion by refusing the application on the ground that they did not satisfy the requirement;

(2)  Procedural unfairness in that the director acted in procedurally unfair manner in dealing with the claim;

(3)  Procedural unfairness in that the Director’s decision to refuse the claim was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in the Director failing to meet the greater care and duty owed to a self-represented claimant; and

(5)  Procedural unfairness in failing to provide proper mechanism to allow unrepresented litigants to have better understanding about the reasons for rejecting their claims. 

14.By then the Applicant was also out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the three-month period for her to file her Form 86 fell on 12 August 2022, the Applicant was therefore more than one month late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of more than one month must be considered as substantial and inordinate, for which she explained at the hearing of her application that she being unrepresented did not know what to do and had had to seek help from others to prepare the necessary legal documents, but by the time she was able to do so she was already out of time with her intended application.

17.The record shows that the Director’s decision was sent on the same day to her last reported address without being returned through undelivered post, and while I accept that the Applicant might have needed help with legal documents, this is as noted above already her second such application that she cannot be said to be without experience in this sort of proceedings, and taking into account of the total amount of time that she had, I am not satisfied that the Applicant has provided a good or valid reason for her substantial delay.     

18.As for the merits, if any, of her intended application, those grounds of the Applicant stated above for her intended challenge are however just some vague and bare assertions containing a few key words or phrases but without proper details or particulars or elaboration or relevancy as to how they apply to her case or how the Director had erred in his decision, or in what way did the Director unlawfully fetter his discretion or act in a procedurally unfair manner or that his reason was unreasonable or irrational.  As such I do not find any of these grounds relevant to the Applicant’s case or reasonably arguable for her intended challenge, nor do I find any merits in her intended application.      

19.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Restricted Proceedings Order

20.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 21 January 2022, but that the Applicant is still trying to re-litigate her case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

21.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1)  The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a)   no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)   any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2)  The Court of First Instance may not make an order under subsection (1) unless –

(a)   it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)   it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3)  An order made under subsection (1) –

(a)   may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)   may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

22.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

23.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

24.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] - [10]).

25.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] - [40]).        

26.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against her, to which she was unable to raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

27.Accordingly, I make the following order:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to 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 her 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 designated Judge 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 this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by 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 designated Judge, 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 under 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; and

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

Disposition 

28.The Applicant’s application for leave to apply for judicial review is dismissed.

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

Dated the 16^th day of March 2023.

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