Tran Binh Luan and Another v. Director of Immigration

HCAL 1429/2023

[2023] HKCFI 2591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1429 OF 2023

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 and 2nd Applicants 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 15 November2022 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 15 November 2022 refusing to allow the Applicants to make a subsequent claim for non-refoulement protection after their previous claims 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 Applicants are a married couple in their early 30s from Vietnam who entered Hong Kong illegally on separate occasions in 2014, and after their arrests by the police and were referred to the Immigration Department for investigation, they jointly raised their non-refoulement claims on the basis that if they returned to Vietnam they would be harmed or killed by their creditors over their outstanding debts.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 25 April 2017 the Director rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his 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’ claims and assessed the level of risk of harm from their creditors upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problems with their creditors were private monetary disputes 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 Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicants as both able-bodied adults with working experience to move to other part of the country away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for their creditors to locate them.

5.The Applicants’ appeal against the Director’s decision was dismissed by the Board on 2 March 2018 after hearing both of them in evidence and submissions and upon finding no merits in their claims or appeal, and that it also confirmed the Director’s decision.

6.The Applicants’ separate applications for leave to apply for judicial review of the Board’s decision were 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 applications (HCAL 724/2018 & HCAL 725/2018 [2020] HKCFI 2277 and 2278).

7.The Applicants’ subsequent appeals against the Court’s decision were dismissed by the Court of Appeal on 10 May 2021 (CACV 512/2020 & CACV 513/2020 [2021] HKCA 644 & 645).

8.The Applicants’ Notice of Motion for leave to appeal against the Court of Appeal’s decisions were also dismissed by the Court of Appeal on 30 July 2021 ([2021] HKCA 1068 & 1069), and then by the Appeal Committee of the Court of Final Appeal on 14 March 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Some 4 months later on 26 July 2022 the Applicants jointly 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 their creditors if refouled to Vietnam, while the 2^nd Applicant (“A2”) was then pregnant with their child but the pregnancy was diagnosed as complicated by structural fetal abnormalities of the urinary tract that after birth the child may require further investigations and treatments in Hong Kong but which may not be available or are too expansive in Vietnam for the Applicants.     

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 16 August 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.In support of their case regarding A2’s pregnancy, the Applicants through their lawyer submitted various medical documents including those from the Hospital Authority and Kwong Wah Hospital with information of which lawyer for the Applicants made the following submissions:

(1)  That A2 was then 31 weeks pregnant with expected due date of 20 November 2022;

(2)  That her pregnancy was complicated by structural fetal abnormality of bilateral hydronephrosis in that the urinary tract may require regular ultrasound and antenatal care;

(3)  That after delivery the new born baby would need further investigations and/or treatments including the possibility of surgery for the bilateral hydronephrosis condition.

13.It was therefore submitted by their lawyer that in light of the medical situations of both A2 and the child that it is of utmost importance to the Applicants to remain in Hong Kong to receive continuous medical observation/monitoring and/or treatments as advised by the doctors as the potential adverse consequences could be dire.     

14.By a Notice of Decision dated 15 November 2022 the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis of harm from their creditors was essentially the same as that of their previous claim, while any change of circumstances since their previous claim was determined due to complications arising from A2’s pregnancy would not be so significant or that such change when taken together with the material previously submitted in support of their previous claim would give their subsequent claim any realistic prospect of success given that relevant COI show that modern medical facilities and services are available in Vietnam for both pregnant women and babies with postnatal complications with continuous medical care as evidenced by reports of Vietnamese surgeons performing incredible life-saving surgeries on new born babies and hospitals providing good care and services for new born babies with complications that it is not accepted that the Applicants or their child would be deprived of similar medical services in Vietnam if refouled to their home country.

15.On 16 August 2023 the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for their intended challenge:

(1)  That the Director reached the decision wrongly in assessing their non-refoulement claim in that the decision as not reasonable or fair as required by the Wednesbury test in failing to recognizing that their right to life must be protected by criminal law from killings that they may face if deported back to their home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicants’ case which led to an unfair outcome of rejecting their non-refoulement claims;

(3)  That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the personal background and experience of the Applicants into account in assessing their claims;

(4)  That the Director had listed relevant COI which supported the Applicants’ aversions that the police in their home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise against the Applicants’ claims;

(5)  That the Director was procedurally unfair or improper when assessing whether or not to accept explanations provided by the Applicants and unreasonably required them to respond to questions that they were not in a position to offer their response;

(6)  That the Director had clearly shown unfair attitude against the Applicants which in itself is enough to render his decision void;

(7)  That the Director failed to attain high standards of fairness in failing to recognize the Applicants’ assertions that corruption and incompetency of the administration in their home country is still a very serious problem as various human rights organizations have compiled reports that stated testament to such assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(8)  That the Director’s decision to refuse the Applicants’ claim was wrong and irrational that leave should be granted for it to be judicially reviewed.   

16.The Applicants were however by then already 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.

17.As the last day of the 3-month period for them to file their Form 86 fell on 15 February 2023, the Applicants were therefore some 6 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.

18.In the Applicant’s case, a delay of 6 months must be considered as very substantial and inordinate, for which A2 at the hearing of their application explained that after giving birth of her child in October 2022, her child was kept in the hospital for observations and treatments for 5 months during which she had to stay with and care for her child that she was too busy to deal with the filing of their application until the child was discharged from the hospital in early 2023, but by then they were already out of time with their application.

19.The record shows that the Director’s decision was sent on the same day of 15 November 2022 to the Applicants care of their lawyer from DLS without being returned through undelivered post, and while A2 may have been occupied with the care of her new born child in the hospital, her husband A1 should and would have been able to deal with the preparation and filing of their application which also appear to have been prepared with legal assistance. As such, and given the experience they already had from their previous claim, I am not satisfied that the Applicants have provided a good or valid reason for their such serious delay.          

20.As for the merits, if any, of their intended application, those grounds put forward by the Applicants as noted above are just some vague and bare assertions containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to their case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or what relevancy was State Acquiescence to their claims, or how did the Director misapply COI in assessing their claims.  None of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicants, and as such I do not find any of them reasonably arguable for their intended challenge.

21.While the immigration officer in assessing the Applicants’ request in the circumstances of the medical concerns raised of A2’s pregnancy should perhaps have waited a bit longer for what turned out to be a very brief delay until after she had given birth in October 2022 so that further medical evidence would be available regarding the situations and well-being of both mother and child before arriving at the decision, the fact is that when the Applicants attended before the Court some 10 months thereafter for the hearing of their application, A2 who presented their submissions and addressed the Court on behalf of both of them appeared perfectly normal, and that they confirmed that their only concern is over the current medical follow-up monitoring and/or treatments provided for their child in Hong Kong may not be available or are too expansive in Vietnam.

22.The Applicants have not produced any further medical reports as to the current or latest medical condition of their child who was in fact also present in Court and appeared lively and bouncy in A1’s arms, and even accepting that continuing medical monitoring or observations or even further treatments may be necessary for their child, as evidenced by the relevant COI relied on by the Director in his decision as to the availability of comparable medical services in Vietnam, I am not satisfied that the Applicants have established that they and/or their child would face any risk of being deprived of such medical services in their home country.

23.Furthermore, even putting aside that their child is in fact not a non-refoulement claimant or an applicant in the present application, and accepting that the removal of seriously ill claimants to their country of origin could raise an issue under the BOR 3 ground, such removal would only violate BOR 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of care or treatment which would have been available in the departing state: see D v United Kingdom (Application No. 30240/96), and AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, where the applicants were in critical stage or dying from illness such as AIDS.  In the present case there is simply no evidence of such medical conditions or risk to either the Applicants or their child upon their refoulement to their home country.                           

24.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 Applicants’ request for subsequent claim, and as 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

25.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 14 March 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 or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

26.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.

…”

27.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.”

28.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.  

29.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]).

30.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]).        

31.In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against them, to which they were 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.

32.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 

33.The Applicants’ application for leave to apply for judicial review is dismissed.

34.A RPO in terms of paragraph 32 be made against the Applicants.  

Dated the 10^th day of October 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