Khadka Krishna Maya v. Director of Immigration

HCAL 790/2023

[2024] HKCFI 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 790 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 10 May 2023 (the “Director’s Decision”) refusing her subsequent claim of HCAL 2983 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 her since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert her non-refoulement claim on the same facts of the case, thereby abusing the legal process.  The applicant was being detained in prison and she appeared before the Court on 1 November 2023.

3.Before this Court, the applicant admitted that she relies on the same reasons in her previous claim in support of her application for subsequent claim.

The procedural history

4.The applicant is a national of Nepal.  She was arrested by police on 26 August 2010 for illegally remaining and was referred to the Immigration Department on 27 August 2010.  She previously raised a torture claim which had been refused by the Director and the Board respectively on 16 February 2011 and 23 March 2011.

5.By written significations respectively dated 23 April 2014 and 24 April 2014, she lodged her non-refoulement claim with the Immigration Department on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. 

6.Her claim was rejected by the Director by a Notice of Decision dated 28 April 2016 and the Director’s Notice of Further Decision dated 5 January 2017 on all applicable grounds of her claim.

7.She appealed to the Torture Claims Board (the “Board”).  By Decision dated 6 December 2018, the Board dismissed her appeal.

8.She applied for leave for judicial review of the Board’s Decision and pursue the matter in the High Court.  Her applications to the Court of the First Instance, the Court of Appeal and the Court of Final Appeal were refused.

9.She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 20 March 2023.

10.By the Director’s Decision, the Director refused her application.

The subsequent claim application

11.The factual basis of her previous claim is that if she is refouled, she will be harmed or killed by her brother-in-law and other Maoist members.

12.The Director found that her previous claim was not substantiated and refused her application.  She appealed to the Board.

13.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, found that the core of the applicant’s factual account lacked credibility because her evidence given to the immigration officer and to the Board was inconsistent or even contradictory.  It rejected her evidence and dismissed her appeal.  In her application for leave for judicial review of the Board’s Decision, the court agreed with the Board’s reasons and dismissed her application.

14.Under section 37ZO of the Ordinance, she 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.

15.In support of her application, the applicant had submitted her statement to the immigration officer together with some letters.  The immigration officer, having considered her evidence, concluded that there was no significant change of the circumstances since her previous claim was finally determined.

16.The Director therefore did not accept that there is significant change of circumstances, which, coupled with the previous claim, would give the subsequent claim a realistic prospect of success.  Thus, he refused her application for the subsequent claim.

The application for leave to apply for judicial review application

17.The applicant has filed Form 86 on 22 May 2023 for leave to apply for judicial review of the Director’s Decision.

18.The applicant also filed an affidavit in support of her application, in which she did not raise any specific ground.  She attached a page to her affidavit, in which she submitted that the Director did not consider her evidence with photographs of her husband being killed.

Discussion

19.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).

20.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant admitted that her reasons in support of her subsequent claim are the same as those in her previous claim and that now she has married a man of 80 years old and he is sick.  She further said that she wants to go back to Nepal with her husband.  As such her grounds in paragraph 18 are irrelevant.

21.The applicant has failed to raise any valid reason to challenge the Director’s Decision.  I dismiss her application for leave to apply for judicial review of the Director’s Decision.

22.Before this Form CALL-1 is published, the Court received a letter from the Immigration Department enclosed with the applicant’s letter 19 September 2023, in which she said:

“…I want to go back to my home country, Kathmandu, Nepal. I do not have money and no one can help me to arrange. Please help me arrange for my return ticket.”

23.The letter expresses a clear intention of abandoning her application for judicial review of the Director’s Decision.

The RPO

24.The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her 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 her.  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.

25.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.

26.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 her intention is clearly an abuse of the process.  The application should be viewed together with the procedural history of the case.

27.For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against her.  The propose RPO was explained to her through the court interpreter.  She confirmed that she understood it and she had nothing to say except that she wants one or two more months to go back home with her husband.

28.Although now the applicant is saying that she wants to return to Nepal with her husband, I am 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

29.The applicant’s application is dismissed.

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

Dated the 16^th day of January 2024

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