Le Van Trien v. Director of Immigration

HCAL 1410/2023

[2023] HKCFI 2605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1410 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 present in open court;

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

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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 14 March 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2638 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 applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

3.The applicant appeared before the Court on 11 September 2023. Before the Court, the applicant admitted that he relied upon the same facts in his previous claim to support his application.

The procedural history

4.The applicant is a national of Vietnam. He came to Hong Kong illegally on 15 August 2016 and surrendered to the Immigration Department. He lodged his non-refoulement claim on 5 January 2017 on the grounds of the Torture risk, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

5.His claim was rejected by the Director by a Notice of Decision dated 19 October 2017.

6.He appealed to the Torture Claims Board (the “Board”). By Decision dated 6 September 2018, the Board dismissed his appeal.

7.He applied for leave for judicial review of the Board’s Decision and failed. He then pursued the matter to the appellate courts up to the Court of Final Appeal. By order dated 20 October 2022, the Court of Final Appeal dismissed his application.

8.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 15 December 2022.

9.By the Director’s Decision, the Director refused his application.

The subsequent claim application

10.The factual basis of his previous claim is that if he is refouled, he would be harmed or killed by the creditor in Vietnam as he was unable to settle his debt. He also said that he would not be able to support himself because he is a AIDS patient.

11.The Director found that his previous claim was not substantiated and rejected his application. He appealed to the Board.

12.The Board rejected his appeal and affirmed the Director’s Decision. The Board seems to have accepted the applicant’s evidence and found that he did not have the torture treatment within the context of section 37U of the Ordinance; that state protection would be available to him; that the Vietnam government would provide medical care for AIDS patients; that the applicant’s case did not fall within the ambit of BOR 2 risk; that the applicant’s case would not pass the threshold of the standard as required under BOR 3 and that his case was a private debt case, which did not involve the state and did not fall within the ambit of Prosecution risk. Further, the Board found that internal relocation was an option open to him.

13.Under section 37ZO of the Ordinance, he has 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 realist prospect of success.

14.Despite the applicant having been advised to submit additional information in support of his application, the applicant did not submit any additional information to the immigration officer for his consideration.

15.The immigration officer did not accept that there had been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.

The application for leave to apply for judicial review application

16.The applicant has filed Form 86 dated 14 August 2023 to apply for leave for judicial review of the Director’s Decision.

17.The applicant has raised grounds that the Director was unfair and failed to consider state acquiescence, did not take his situation into consideration etc. All these grounds are irrelevant as the applicant has admitted he relies on the same reasons of his previous claim in support of this application.

Discussion

18.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).

19.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

20.Before me, the applicant admitted that he had relied upon the same reasons in his previous claim in support of his subsequent claim application. His grounds in paragraph 17 are irrelevant. See paragraph 17 above.

21.There is no realistic prospect of success in his subsequent claim. I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

22.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. 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.

23.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 Direcctor 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.

24.In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

25.For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. The applicant said he had nothing to say.

26.I am therefore satisfied that, if not restrained, it is likely that the applicant 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:

(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 Applicant 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 the 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 Court.

(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

27.The applicant’s application is dismissed.

28.RPO in terms of paragraph 26 be made against the applicant.

Dated the 24^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