Puji Lestari Tumijan v. Director of Immigration

HCAL 1507/2022

[2023] HKCFI 1810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1507 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 1st 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 1 April 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 Applicants.

Observations for the Applicants:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 1 April 2022 refusing to allow the Applicants to make a subsequent claim for non-refoulement protection after their 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 1^st Applicant (“A1”) is a 45-year-old national of Indonesia who last arrived in Hong Kong on 4 February 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 August 2009 or within 14 days of its early termination, but when it was prematurely terminated on 28 November 2008 after she became pregnant, she did not depart and instead overstayed in Hong Kong, and on 3 February 2009 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her step-father and brothers over their domestic disputes, and after she gave birth to her son, the 2^nd Applicant (“A2”) on 14 April 2009, she also raised a torture claim for him on the same basis, and when their torture claims were rejected, they then jointly sought non-refoulement protection on the same basis.    

Previous Non-Refoulement Claim  

3.By a Notice of Decision dated 21 February 2017 the Director rejected the Applicants’ claim on all the remaining applicable grounds other than torture risk including risk of their 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 Applicants’ claim and assessed the level of risk of harm from A1’s step-father or brothers upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in any event they were private disputes between them within the family without any official involvement that state or police protection would be available to the Applicants 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 258 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 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 step-father or brothers to locate them.

5.The Applicants’ appeal against the Director’s decision was dismissed by the Board on 24 August 2018 after hearing A1 in evidence and submissions and upon finding no merits in their claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicants’ application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 15 September 2020 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended application (HCAL 2065/2018 [2020] HKCFI 2282).

7.The Applicants’ subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 18 March 2021 (CACV 496/2020 [2021] HKCA 358).

8.The Applicants’ Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 22 June 2021 ([2021] HKCA 906), and then by the Appeal Committee of the Court of Final Appeal on 25 February 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Meanwhile even before the Court of Final Appeal’s decision was made, the Applicants on 28 December 2021 in writing to the Immigration Department requested to make a subsequent claim on the basis that they still fear of being harmed or killed by A1’s step-father and brothers if refouled to Indonesia, while having lived in Hong Kong all these years since 2008 and with A2 being born and raised in Hong Kong, they also fear of not being able to adapt to life in Indonesia.

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 12 January 2022 the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 1 April 2022 the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis thereof was essentially the same as that of their previous claim, and that they failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claim was determined, or that those changes when taken together with the material previously submitted in support of their previous claim would give their subsequent claim any realistic prospect of success, and that upon also considering A2’s situations as a minor being born as an illegitimate child and raised in Hong Kong, that he can only communicate in English and Cantonese, and that he may be baptized as a Christian in the near future, but that according to the relevant COI that A2 would be entitled to be treated as an Indonesian citizen and with the support and assistances from the Indonesian government and other organizations available that it is not accepted that he would face any real or foreseeable risk from anyone in Indonesia or that he or A1 would have any difficulty adapting to life over there.    

13.On 15 December 2022 the Applicants 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 their Form or in their supporting affirmation filed on the same day to which they just attached a copy of the decision but without putting forward any proper ground for their intended challenge, nor was A1 able to do so at the subsequent hearing of their application.

14.By then the Applicants were also out of time with their 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 date 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 3-month period for them to file their Form 86 fell on 1 July 2022, the Applicants were therefore some 5 ½ months late with their 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 Applicants’ case, a delay of 5 ½ months must be considered as very substantial and inordinate, for which A1 explained at the hearing of their application that being unrepresented they were not aware of the 3-month period required for the filing of their Form 86, but as the record shows that the decision was sent on the same day of 1 April 2022 to their lawyer from DLS without being returned through undelivered post that they would have been so advised by their lawyer, and as they had also gone through the same process without legal representation in their previous claim and would therefore have been well aware of such procedural requirement, I am not satisfied that the Applicants have provided any good or valid reason for their serious delay.       

17.As for the merits, if any, of their intended application, as noted above the Applicants have failed to put forth any proper ground for their intended challenge. As such, 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 Applicants’ request for subsequent claim, and that the Director did also separately consider and examine the claim of A2 as a minor at the age of 13 with regard to his specific and personal circumstances as presented by his mother A1 and their lawyer from DLS and as set out in the decision ([13] – [16] of decision), I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Restricted Proceedings Order

18.Given the facts that the Applicants’ 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 25 February 2022, but that the Applicants are still trying to re-litigate their 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 them.

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 Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against them, to which A1 was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicants 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 Applicants 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 Applicants 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 Applicants do notify in writing each intended defendant or respondent of their 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 Applicants from any such intended defendant or respondent, that the Applicants do file a copy of each such response together with their 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 Applicants 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 Applicants 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 Applicants 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 Applicants’ application for leave to apply for judicial review is dismissed.

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

Dated the 12^th 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