Atukunda Grace Flavia v. Director of Immigration

HCAL 1709/2021

[2024] HKCFI 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1709 OF 2021

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BETWEEN

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DECISION

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The application

1.The applicant has taken out this summons under the Restricted Proceeding Order dated 15 March 2022 of this Court (“RPO”). The applicant is legally represented.

2.The applicant asks for: (1) leave to appeal against the Court’s decision dated 5 March 2024 (“the Court’s First Decision”); (2) leave to rely on the Draft Grounds of Appeal”) as annexed to the summons; and (3) Costs of this application in the cause of the proceedings.

3.There is no application for a hearing. I shall deal with this application on paper.

4.Under paragraph (3) of the RPO, the applicant should notify the Director of Immigration (“the Director”) 7 days before taking out the application. There is no evidence that this condition has been complied with. A copy of this Decision should be sent to the Department of Justice as well.

The background

5.The applicant made a second application for subsequent claim to the Director. The Director reject her application. The applicant then applied to this Court for leave to apply for judicial review of the Director’s decision.

6.By the Court’s First Decision, this Court refused the applicant’s application. This application takes the matter further.

7.As the factual background of this applicant has been set out in the Court’s First Decision, I shall not repeat it here.

8.The purpose of the RPO is to prevent abuse of the court’s proceedings by restricting the applicant from bringing the same issues of facts to the court from time to time even though the court has made its determination on those facts. Therefore, I shall be brief in my reasons below.

9.Having considered the Draft Grounds of Appeal annexed to the summons for this application, I have come to conclusion that this application is devoid of merit and the intended appeal has no reasonable prospect of success. I shall state my reasons below.

Discussion

10.Ground (1) is agued on a wrong basis. The applicant raised two issues. The first issue is that this Court was wrong to reject the principle that once the applicant has raised change of circumstances, the test under Section 37ZO is satisfied. The second issue is that the Court is in error not to differentiate the evidence for the previous claim and that for the subsequent claim application.

11.Under section ZO of the Ordinance, it is for the applicant to show to the Director the significant change of circumstances, which is a matter of fact for the Director. The starting point must be that the Director accepts the alleged facts as raised by the applicant. In this case, the Director had considered the applicant’s alleged facts, and for the reasons he had given, he rejected the facts. This is a matter of credibility of the applicant’s evidence. The Director has the discretion on its acceptability as determined by the Court of Appeal in Re: Kartini [2019] HKCA 1022, 9 September 2019.

12.In the determination of the applicant’s evidence on the facts in respect of the change of circumstances, the Director had to consider facts that may be different from the applicant’s previous claim. However, the Director had to assess the quality of the new evidence for determining its acceptability. For the assessment of the credibility of the evidence, there is no difference between the facts of the previous claim and the new facts in support of the subsequent claim.

13.Ground (1) fails.

14.Unfortunately, ground (2) is argued on a wrong basis too. The applicant has raised two issues. The first issue is that the Court demanded the applicant to prove the Director’s Decision was Wednesbury unreasonable. The second issue is that the Court did not resolve the applicant’s complaint that the Director adopted common sense to determine the credibility of the evidence, relying on ST v Betty Kwan [2014] 4 HKLRD 277 at §43.

15.Paragraph 40 of the Court’s First Decision does not say that the applicant has to prove that the Director was Wednesbury unreasonable in its approach to credibility assessment. Counsel relied upon the case of Azubuine Solomon Kingsley v Director of Immigration [2023] HKCFI 3160. In this case, the court identified Wednesbury unreasonableness in the Director’s decision rejecting the applicant’s application for a subsequent claim application because the immigration officer admitted the Board might be wrong in its decision. This is not the situation in this case. See paragraphs 45-47 of the Court’s First Decision.

16.The solicitor relies upon the case of ST v Betty Kwan’s case to say that the Court of Appeal held that common sense ought to have been regarded “as a means of last resort [report] sic…”. This is a misinterpretation of the Court of Appeal’s judgment. The Court of Appeal stated that solely relying on the burden of proof should be the last resort of the screening process. On the question of the application of common sense for the screening, the Court of Appeal said it may or may not be a reliable guide. I have held that the Director was entitled to apply his commons sense in this case. Paragraph 43 of the Court of Appeal judgment reads:

“ … In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.” (emphasis added)

17.For the reasons above, Ground (2) fails.

18.Ground (3) states that this Court is in error in affirming the Director’s rejection of the medical evidence and labelling the submission and/or acceptance [of] such evidence as an “abuse” of the USM.

19.In paragraph 49 of the Court’s First Decision, this Court had set out the facts, on which the Court made the findings. The applicant does not dispute those facts relied upon. This Court also relied upon the Court of Appeal’s decision in AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015. The applicant does not dispute the Court of Appeal’s decision.

20.Since the applicant does not dispute the facts. It is not for her to say that the Court is in error in affirming the Director’s rejection of the medical evidence.

21.This Court has no qualm to state clearly that to make such application for a second subsequent claim where there is no valid reason in support of it, amounts to an abuse of the USM, based upon the rationale of the Court of Appeal in AW’s case. I have stated the reasons in the Court’s First Decision. See paragraphs 51-60. The legal representatives, who are trained professionals, should be in a position to make a proper assessment of the case and advise their clients accordingly. The courts have been dealing with subsequent claims and imposed RPO on those cases for prevention of abuse of the court’s process. Any wrong message from the court may open a floodgate of similar applications from those RPO cases. The legal profession has an obligation to assist the court for the administration of justice and for public interest. The court in Md Yazdani v Director of Immigration [2023] HKCFI 1046, Hon Coleman J, 26 April 2023 had made the following observations:

“ 25. It is now a matter of public knowledge that it has been common that for a NRC to exhaust all the administrative and judicial avenues, all the way from the Director’s decision to the CFA’s, might take years or even more than a decade. Some claimants will also try to resurrect their NRC, which has already been rejected by the CFA, by filing a ‘subsequent claim’. Hong Kong has been flooded with tens of thousands of claimants in the past decade who have been lingering in Hong Kong for years pending the ultimate resolution of their NRC. This has created an enormous workload and pressure to both the Government and the judicial system.

22.Ground (3) fails.

23.Ground (4) states that the Director had cast away the Country of Origin Information (“COI”) in relation to the issues of state protection and internal relocation and the Court did not resolve this issue. There is no evidence in support of this allegation. The applicant only submits that a large volume of COI had been submitted to the Board. The applicant’s allegation that the Board had ignored the COI is not supported by evidence. The Court of Appeal in the case of B v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCA 520, Hon Yuen JA and D’Almada Remedios J, 13 April 2023, had held that this is not a valid ground for judicial review:

“ 50. In our view, the mere fact that the Board did not address and discuss each and every piece of COI placed before it is not in itself a ground for judicial review. It is not within the Board’s remit to attempt to reconcile those materials, nor is it bound to choose only those materials which are favourable to the applicant’s case because, as noted above, the materials come from different sources, are published at different times, contain different degrees of detail, and have different depth and perspectives. It is not fair to the Board to argue that because it has not specifically referred to one particular piece of information, that it was “overlooked”. The Board is not expected to give a summary of all the materials it has been provided with, just to prove that it has considered them all. The purpose of the COI is to see, by reference to independent objective materials, whether the applicant’s alleged fear of being persecuted due to discrimination was “well-founded”.

24.Ground (4) fails.

25.Ground (5) is only the solicitor’s personal opinion that leave should be given for this case. It does not merit any response save to say that such opinion is not a valid ground for this application.

Disposition

26.For the above reasons, I dismiss the applicant’s application. I shall now make an Order in terms as follows:

(a) Paragraph 1. of the summons for leave to appeal against the Court’s First Decision be dismissed;

(b) Paragraph 2 of the summons for leave to rely on the Draft Grounds of Appeal be dismissed; and

(c) No order as to costs.

27.Accordingly, the applicant’s summons is dismissed.

Mr Jonathan Kwok, instructed by M/s Patricia Ho & Associates, for the applicant