Endang Susilowati Samuji and Another v. Director of Immigration

HCAL 99/2023

[2023] HKCFI 1721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 99 of 2023

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Absence of legal representation for the 2^nd applicant shall be treated as irregularity only and shall not render nullity of this proceeding under Order 2 of the RHC;

2.  The applicants’ application for leave to apply for Judicial Review be refused; and

3.  A Restricted Proceedings Order (RPO) in terms of paragraph 34 be made against the applicants

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, who is now 12 years old. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 25 February 2022 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 2520 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.The 1^st and the 2^nd applicants appeared before the Court on 26 April 2023.

The procedural history

4.The applicants are nationals of Indonesia. She had worked as a domestic helper in Hong Kong since 1994. She returned to Indonesia after completion of her contract in 2001. She came to Hong Kong again in 2003 to work as a domestic helper. She overstayed from October 2009 and was arrested by the police on 27 December 2009. On 16 August 2010, the 1^st applicant gave birth to her daughter, the 2^nd applicant in these proceedings.

5.The applicants had previously lodged their torture claims, the appeal of which was rejected on 26 November 2012. The 1^st applicant lodged a non-refoulement claim for herself, which was received by the Director on 20 February 2014. She also raised a non-refoulement claim for her daughter on 17 March 2015.

6.Since the applicants’ torture claims had already been rejected on appeal, the refusal decision of their torture claims would not be reviewed under the Unified Screening Mechanism. The Director considered their non-refoulement claims on the grounds of BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3], collectively called (“their claims”).

7.Their claims were rejected by the Director by a Notice of Decision dated 16 April 2018 (“the Director’s Decision”).

8.They appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 12 September 2018 (the “Board’s Decision”), the Board dismissed their appeals.

9.They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order on 21 November 2019 (“the Court’s Order”).

10.Their appeal against the Court’s Orders was dismissed by the Court of Appeal on 28 May 2020.

11.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 30 July 2020.

12.Their joint 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 28 October 2021.

13.They jointly applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 20 December 2021.

14.By the Director’s Decision, the Director refused their joint application.

The subsequent claim application

15.The 2^nd applicant’s application relies on the factual background of the 1^st applicant.

16.Briefly stated, their claims were made on the basis that they will be harmed or killed by the 1^st applicant’s father if they return to Indonesia because the 1^st applicant has converted from Christianity to Islam and the 2^nd applicant was born out of wedlock.

17.The Director considered that the 1^st applicant’s father does not have real intention to cause the applicants serious harm or to kill them upon their return to Indonesia and the absence of any real ill-treatment from the 1^st applicant’s father in the past is an indication of the low future risk of harm. Besides, the Director assessed that their problem is localized and they will not face any real and substantial risk of being ill-treated as reasonable state protection and internal relocation alternatives are available to them in Indonesia. Thus, the Director rejected their non-refoulement applications.

18.The applicants appealed to the Board. The Board found that the applicants were unable to establish their claims as there was no evidence to show any severe ill-treatment and serious harm, they could not establish any likelihood of risk to life, state protection is available and internal relocation is viable. Therefore, the appeal was rejected by the Board.

19.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.

20.In support of their subsequent claim, the 1^st applicant submitted that her problems of her father objecting to her conversion of religion and her daughter born out of wedlock, and further, that her daughter who had been brought up in Hong Kong would have difficulty in adapting to the environment, especially the education system, in Indonesia, if repatriated. All these issues had been considered in her previous claim by the Director and the Board and were rejected. The Director considered that she is relying upon the same facts in her previous claim for her subsequent claim.

21.The Director therefore found that the additional information, when considered together with her previous claim, would not give them reasonable prospect of success in their subsequent claim and dismissed their application.

The application for leave to apply for judicial review

22.The 1^st applicant has filed an affidavit in support of their application, in which she only enclosed a copy of the Director’s Decision without setting out any specific ground.

DISCUSSION

23.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).

24.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she understood the Director’s Decision. She also admitted that she relied on the same facts of their previous claim for their subsequent claim application.

25.I note that the 2^nd applicant is a minor. She was not legally represented before the Board in the previous claim. However, the applicants were legally represented when they made their subsequent claim application as the additional information was submitted by their legal representative.

26.In Re: Fabio Arlyn Timogan & Ors. V Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, the Court of Appeal held that the minor’s case must be separately considered by the Director or the Board. In this case, the Board in the previous claim and the Director in this application had considered the 2^nd applicant’s case separately. The Director had considered (as per paragraph 11 of the Director’s Decision):

a.  there was no reasonable likelihood that the 1^st applicant’s father would harm or kill the 2^nd applicant; nor could he mobilize his resource to search the 1^st applicant and the 2^nd applicant throughout the country;

b.  COI showed that local legislation, government departments or non-government organizations in Indonesia protect and help women and children in need;

c.  internal relocation alternative is available and reasonable to the 1^st applicant and the 2^nd applicant;

d.  the adjudicator was of the view that there was no evidence to establish any substantial grounds for believing that the 1^st applicant and the 2^nd applicant would suffer severe ill-treatment or serious harm; and

e.  the adjudicator was of the view that if the 1^st applicant and the 2^nd applicant were in need of any shelter, even on a temporary basis, the 1^st applicant could approach any of the charitable organizations in Indonesia for assistance, one of which is PEKKA and the 2^nd applicant might also seek help from the Pricilla Hall Foundation.

27.In the circumstances, there is nothing before this Court to show that there are any child-specific matters, which were not considered separately by the Director in this application. Neither had the 1^st applicant brought any child-specific issues which should have been considered by the Director. As the applicants were legally represented in their application for subsequent claim, the legal representative should have taken on board Fabio’s case, which was published more than 2 years ago. The caution that child-specifics of the 2^nd applicant was not presented to the Director for lack of legal representation is therefore remote.

28.There being no realistic prospect of success in their subsequent claim, I dismiss their joint application for leave to apply for judicial review of the Director’s Decision.

The RPO

29.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.

30.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.

31.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.

32.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 has been explained the proposed restricted proceedings order before this hearing.

33.Upon being requested to show cause why the Court should not make the RPO against them, the 1^st applicant said she had married a Hong Kong resident and she is applying for dependent visa for herself and the 2^nd applicant.

34.Having considered the 1^st applicant’s explanation, 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/or 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 Applicants 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

35.The Court now makes an order in terms as follows:

a.  absence of legal representation for the 2^nd applicant shall be treated as irregularity only and shall not render nullity of this proceeding under Order 2 of the RHC;

b.  the applicants’ application be dismissed; and

c.  RPO in terms of paragraph 34 be made against the applicants

Dated the 3^rd day of July 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