Darsah Subarkah Darta Amen v. Director of Immigration

HCAL 726/2024

[2024] HKCFI 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 726 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 14 March 2024 (the “Director’s Decision”) refusing her subsequent claim of HCAL 230 of 2019 (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 5 June 2024.  Before the Court. The applicant agreed that she relied 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 46.  She entered Hong Kong as a foreign domestic helper.  However, she was arrested by the police for theft on 21 June 2015.  Thus, on 22 June 2015, her employment contract was terminated prematurely.  She was sentenced to 7 week’s imprisonment.  On 29 July 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan sharks for her defaults in repayments. 

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 on all applicable grounds.

7.She appealed to the Torture Claims Board.  By Decision dated 21 January 2019 (“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 28 January 2022 (“the Court’s Order”), the Court dismissed her application.

9.She appealed and pursued all the way to the Court of Final Appeal, the result of which is still pending.

10.By undated letter received by the court on 13 December 2023, the applicant applied for subsequent claim under section ZO of the Ordinance.

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

The subsequent claim application

12.The factual basis of her previous claim is that if refouled, she feared that she would be harmed or killed by the loan sharks for her defaults in repayments.

13.The Director found that her previous claim was not substantiated and rejected her application.

14.The Board found that the dispute between the applicant and the loan sharks were private matters and the state was no involved.  The alleged injuries suffered by the applicant were minor.  The country of origin information showed that active steps were taken by the government to eliminate corruptions.  When she returned to Indonesia she was undisturbed.  She could move within her home country worry-free [17].  For these reasons, the Board rejected her claim on all applicable grounds and dismissed her appeal.

15.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.

16.The immigration officer considered the applicant’s additional materials. In gist, the applicant fears that she will be harmed or killed by the loan sharks if she returns to Indonesia.  The immigration officer came to the conclusion that there was not any significant change of circumstances, which considered together with her previous claim, would give her realistic prospect of success in her subsequent claim.  The Director therefore refused her application for the subsequent claim.

The application for leave to apply for judicial review application

17.The applicant filed Form 86 on 7 May 2024 for leave to apply for judicial review of the Director’s Decision.

18.In support of her application, the applicant has raised the grounds below.

a.  The Director has failed to adequately appreciate or assign the proper importance to the issue of state acquiescence.

b.  The immigration officer rejected her application without conducting a proper inquiry.

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.

21.With her admission before the Court, the grounds raised above become irrelevant.  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

22.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.

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

26.Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say except that she had no money and no one to turn to in Indonesia.

27.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 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

28.The applicant’s application is dismissed.

29.RPO in terms of paragraph 27 be made against the applicant.

Dated the 23^rd day of July 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