Risky Hardianti v. Director of Immigration

HCAL 96/2024

[2024] HKCFI 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 96 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 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 9 November 2023 (the “Director’s Decision”) refusing her subsequent claim of HCAL 754 of 2022 (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.

3.The applicant appeared before the Court on 19 February 2024. Before the Court. The applicant agreed that she relies on the same grounds of her previous claim in support of her application for subsequent claim.

The procedural history

4.The applicant is a national of Indonesia, aged 35. She came to Hong Kong and worked as a domestic helper in 2016. Her employment contract was prematurely terminated. She was arrested for theft and was sentenced to imprisonment. She lodged her non-refoulement claim in January 2018.

5.Her non-refoulement claim with the Immigration Department was 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 Notice of Decision dated 15 May 2018 on all applicable grounds.

7.She appealed to the Torture Claims Board. By Decision dated 4 August 2022 (“the Board’s Decision”), the Board dismissed her appeal.

8.She applied for leave to apply for judicial review of the Board’s Decision. By Form CALL-1 dated 23 January 2024 (“the Court’s Order”), the Court dismissed her application.

9.By 2 undated letters, which the Director received on 7 September 2023 and 12 September 2023, the applicant applied for subsequent claim under section ZO of the Ordinance.

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 she is in fear of the risk of being harmed or killed by a loan shark and his underlings upon return to Indonesia because she failed to settle her father’s loan.

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

13.Time for the applicant to file her notice of appeal expired on 31 May 2018. She filed her notice of appeal on 19 May 2022. Her application for appeal is therefore late for about 3 years and 11 months. Section 37ZT of the Ordinance provides that the Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021, S 19) The Board did not accept her explanation that she had lost the decision document and she did not know how to appeal.

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.The immigration officer considered the applicant’s statements and further materials for her application for subsequent claim. He found that the applicant relied upon the same fear in her previous claim, which had been considered and rejected. Her evidence that the creditor and his underlings had assaulted her and raped her in turn in 2015 at her house, with her father standing nearby watching, was not accepted because she did not disclose the information to the Director in her application for non-refoulement. The evidence that the creditor is still looking for her was hearsay and the immigration officer did not give much weight on such evidence. The immigration went further to say that state protection and internal relocation are available to the applicant, which can alleviate her fear of harm.

16.The Director did not accept that there was significant change of circumstances, which, coupled with the material in her previous claim, would give her 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 filed Form 86 dated 8 January 2024 for leave to apply for judicial review of the Director’s Decision.

18.In support of her application, the applicant repeated her story about her torture of being assaulted and raped. She further said that she did not report the matter to police or relate to the Director because she was traumatized and did not want to mention the incidents to anyone else.

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 she relied on the same reasons in her previous claim in support of her subsequent claim. She further said that she only wanted to stay in Hong Kong.

21.The immigration officer had considered her evidence and took the view that her evidence on the torture of being assaulted and raped was implausible. This is a matter of discretion on the applicant’s credibility. The immigration officer is entitled to form his own judgment, based upon the evidence before him. Even if such evidence were accepted, state protection and internal relocation are available to her, which will alleviate her fear of being harmed. The Court should not interfere with the immigration officer’s decisions.

22.I find that there is no realistic prospect of success in her subsequent claim, I dismiss her application for leave to apply for judicial review of the Director’s Decision.

The RPO

23.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.

24.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.

25.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.

26.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 applicant has been explained the proposed restricted proceedings order before this hearing.

27.Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she only wanted to stay in Hong Kong.

28.Having considered the applicant’s explanation, 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 KW 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 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