Wasinah and Another v. Director of Immigration

HCAL 148/2024

[2024] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 148 of 2024

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 Applicants 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.The 1^st applicant, aged 44 is the mother of the 2^nd applicant, her son, aged 21. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 15 September 2023 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 1335 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 applicants appeared before the Court on 19 February 2024.

4.The 1^st applicant confirmed that the factual basis of her son relied upon her own facts. She further admitted that she relied upon the same reasons in support of her pervious claim for the subsequent claim application.

The procedural history

5.The 1^st applicant is a national of Indonesia. She last came to Hong Kong as a domestic helper in 2001. Her employment contract was terminated prematurely. Since 13 August 2002, she stayed in Hong Kong without authority. She was arrested by police 27 June 2004. She was referred to the Immigration Department and was released on bail. She failed to report to the Immigration Department. On 5 October 2013, she was arrested by police again and was referred to the Immigration Department. On 10 July 2015, she raised her non-refoulement claim with the Immigration Department. Her applicant son was born in 2003.

6.Their non-refoulement claim are on the applicable grounds of the Torture risk, the BOR 2 risk, the BOR 3 risk and the Persecution risk[1], collectively called (“their claims”)

7.Their claims were rejected by the Director by a Notice of Decision dated 27 December 2017 (“the Director’s Notice of Decision”).

8.They appealed the Director’s Notice of Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 15 June 2018 (the “Board’s Decision”), the Board dismissed their appeal.

9.They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 30 March 2021 (“the Court’s Order”).

10.They pursued the matter to the Court of Final Appeal. The Court of Final Appeal dismissed their application for leave to appeal on 28 March 2023.

11.They applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 28 June 2023.

12.By the Director’s Decision, the Director refused their application.

The subsequent claim application

13.Their joint application is based on the fact that if refouled, the applicant and her son would be in danger because her husband in Indonesia knew about her affairs in Hong Kong and had threatened to kill her and her son if they returned to Indonesia.

14.The Director rejected their joint application for the reason that their claim was not substantiated.

15.The applicants appealed the Director’s Decisions to the Board. The Board dismissed their appeal for the reasons that if they returned to Indonesia, the applicant would have state protection and social welfare protection by the government and the non-government agencies. The Board had separate consideration for the 2^nd applicant and found that he might have the same protections and there was no evidence that he would face discrimination of his mixed Pakistani-Indonesian background.

16.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.

17.In support of their subsequent claim, the 1^st applicant submitted a statement, 2 YouTube video-clips and 2 news articles through her duty lawyer on 14 August 2023.

18.Having considered the evidence, the immigration officer considered that the additional evidence and materials did not constitute any significant change of circumstances since their previous claim was finally determined, which, when taken together with their previous claim, would not give the subsequent claim a realistic prospect of success. On this basis, the immigration officer rejected their subsequent claim application.

The application for leave to apply for judicial review

19.The applicants have filed Form 86 on 12 January 2024 for judicial review of the Director’s Decision.

20.The 1^st applicant and 2^nd applicant have jointly filed an affirmation in support of their application, in which they said the immigration officer disregarded their dangerous situation.

DISCUSSION

21.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).

22.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 and 2^nd applicant admitted that they rely upon the same facts in their previous claim in support of their subsequent claim application. But they would like to stay in Hong Kong for the time being.

23.From the Court’s Order, it is clear that the Board had separately considered the 2^nd applicant’s specific issues. The Court had dealt with this issue. It took the view that there was no child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the 2^nd applicant. The Court dismissed the applicants’ application for leave to apply for judicial review of the Board’s Decision, following the decision of the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021:

“33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non‑compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.

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

The RPO

25.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.

26.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.

27.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.

28.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.

29.Upon being requested to show cause why the Court should not make the RPO against them, the 1^st applicant said they want to stay in Hong Kong for the time being. This reason is not valid to challenge the Director’s Decision.

30.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 the 2^nd applicant or anyone of them 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

31.The applicants’ joint application is dismissed.

32.RPO in terms of paragraph 30 be made against the applicants.

Dated the 10^th day of May 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