Phulmati Lama v. Director of Immigration

HCAL 1287/2022

[2023] HKCFI 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1287 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.  Leave to apply for Judicial Review be refused; and

2.  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 (“the Director”) dated 31 October 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 (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 45-year-old national of Nepal who entered Hong Kong illegally on 6 July 2009 and was arrested by police on the following day. After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by members of the Communist Party of Nepal (Maoist) (“Maoists”) after they were said to have killed her husband for refusing to join their party.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 5 February 2015 and a Notice of further Decision dated 23 January 2017 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would face any risk of ill-treatments by the Maoists upon her return to Nepal due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any intention of the Maoists to harm or kill the Applicant, that in any event after all these years since she left the country it is doubtful that there would still be any adverse interest in her, that in the absence of 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 since her departure there have been significant changes in the political situation in Nepal after a peace agreement had been reached between the Nepali government and the Maoists who have since been accepted into the Constituent Assembly of Nepal as a legitimate political party that they would no longer pose any threats to the Applicant or any citizen in Nepal, and that should the Applicant still be concerned for her safety that reasonable internal relocation alternatives would be available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 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 Kathmandu where it would be difficult if not impossible for any Maoist to locate her.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 19 June 2018 upon finding that there were no merits in her claim or her appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 20 April 2021 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 1349/2018 [2021] HKCFI 1030).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 25 October 2021 (CAMP 321/2021 [2021] HKCA 1542).

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 26 November 2021 ([2021] HKCA 1756), and then by the Appeal Committee of the Court of Final Appeal on 23 June 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Some 2 months later on 23 August 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she has been informed by her son in Nepal that some people whom she suspected to be the Maoists have been asking for her whereabouts, while the police are also looking for her due to some false charges being made against her by the Maoists that she still fears of being harmed or killed 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 6 September 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 via her lawyer from Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 31 October 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, 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 any reliable evidence of any adverse interest of the Nepali police or authorities in her over any false changes made against her, 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 given the unchallenged findings by both the Director and the Board in her previous claim of the political changes in Nepal since she left the country over the years that the Maoists as a legitimate political party would no longer pose any threats to the Applicant upon her return to her home country.

13.On 17 November 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation filed on the same day and her subsequent written submissions she put forth the following grounds for her intended challenge:

(1)  Procedural impropriety in the Director’s failure to apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a National state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event while the Director’s decision which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in the Director’s failure to conduct sufficient inquiry into the relevant COI that the Applicant would face serious risk from her enemies who will harm her because of her political and statistical view which considers a serious matter for which she would be harmed upon refoulement while her country situation becomes worse that her life will be in so much danger if returned to her country;

(3)  Procedural impropriety/irrationality in the Director’s failure to conduct any screening interview for the Applicant’s new case as a victim that she would be killed or seriously harmed by her enemies, and that the Director did not inquire her fear as stated in her claim that the possibility of such fear still exists;

(4)  Error/misdirection of law in that the Director failed to consider the Applicant’s new fact provided in her subsequent claim showing the risk of her life from enemies still forced into her life and her family for which she would be in danger upon refoulement;

(5)  Error or misdirection of law in the Director’s failure to consider her supporting documents submitted to establish her claim but which the Director failed to consider or process properly;

(6)  Procedural impropriety in the Director’s failure to consider her fear that her enemies would be able to locate her that she cannot relocate to anywhere in her home country;

(7)  Procedural impropriety in that the Director did not assess her claim genuinely despite the fact that she did receive threatening messages from her enemies that show her life would still be in danger upon refoulement; and

(8)  That there was no sufficient basis for the Director to conclude that she and her family would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

14.Most of these grounds are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant details or particulars or elaboration as to how they would apply to her case or how the Director had erred in his decision, or in what way was the decision procedurally unfair or unreasonable, or how did the Director fail to consider the relevant COI properly or sufficiently in assessing her fear or of the availability of internal relocation. None of these assertions were properly elaborated or presented with any relevant details or particulars that I do not find any of them reasonably arguable for her intended challenge.

15.As for her complaint that the Director had not conducted any screening interview for her request to make a subsequent claim, it is well established that there is no absolute right to an oral hearing, or for that matter a screening interview as in the present case, as the ultimate question is one of fairness, and while an opportunity to make worthwhile or effective representation is an important requirement of fairness in most but not all situations, it does not follow that there must be an oral hearing being held before a decision is to be made: ST v Betty Kwan [2014] 4 HKLRD 277.

16.Given the fact that her previous claim had already been properly and justly disposed of by both the Director and the Board, it is for the Applicant in her request to make a subsequent claim to provide sufficient evidence in writing to satisfy an immigration officer of those requirements stipulated by Section 37ZO(2) of the Immigration Ordinance as noted above, and on the basis of such evidence and information as provided that the immigration officer was entitled to take into account of the findings of credibility and facts made by the Director or the Board in relation to her previous claim, it is in my judgment that the immigration officer in the exercise of his discretion was not at fault in not holding any screening interview for the Applicant’s request, and as such this ground of the Applicant is not reasonably arguable for her intended challenge either.

17.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, I accordingly refuse her leave application.

Restricted Proceedings Order

18.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 23 June 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.

19.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.

…”

20.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.”

21.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.

22.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]).

23.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]).

24.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.

25.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

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

27.A RPO in terms of paragraph 25 be made against the Applicant.

Dated the 18^th day of April 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