Lilik Sumriyah and Others v. Director of Immigration

HCAL 1503/2024

[2025] HKCFI 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1503 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st to 3rd Applicants (“the Applicants”) in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the Applicants.

Observations for the Applicants:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 12 December 2022 refusing to allow the Applicants, a mother and her 2 minor sons, to make a subsequent claim for non-refoulement protection after their previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The 1^st Applicant (“A1”) is a 47-year-old national of Indonesia who first came to Hong Kong in 2006 to work as a foreign domestic helper, during which she formed a relationship with a Bangladeshi man whom she claimed to have later married under the Islamic law but without any reliable or documentary evidence, and out of which she in 2011 became pregnant of their child which led to the termination of her then employment and her return to Indonesia, where she subsequently on 22 November 2011 gave birth to a son, the 2^nd Applicant (“A2”), but of which her elder brother accused her of bringing shame to the family for giving birth to an illegitimate child and threatened to kill her and A2, and so they went into hiding in Indonesia, and in February 2015 they came to Hong Kong as visitors to be with her Bangladeshi boyfriend but subsequently overstayed in Hong Kong.

3.On 9 June 2015 A1 and A2 surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to Indonesia they would be harmed or killed by A1’s brother, and later when A1 gave birth to another son, the 3^rd Applicant (“A3”) on 18 February 2016 out of her asserted Islamic marriage with her Bangladeshi husband, A1 also raised a non-refoulement claim for A3 on the same basis and which was determined jointly with those of her and A2.

Previous Non-Refoulement Claim

4.By a Notice of Decision dated 1 September 2016 and a Notice of Further Decision dated 11 July 2017 the Director rejected the claims of all the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

5.In his decisions the Director took into account of all the relevant circumstances of the claims of all 3 Applicants and found no substantial grounds for believing that the claimed risk of harm from A1’s brother upon their return to Indonesia is real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from A1’s brother, that their problem with A1’s brother was a private family dispute between A1 and her brother only without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that A3 who was born to an Indonesian mother would be regarded as an Indonesian citizen entitled to all the rights and protections of the Indonesian law, that supports and assistances for single mothers and illegitimate children in Indonesia will be available from various governmental departments and NGOs to all 3 Applicants if needed, and that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with her 2 children to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her brother to locate them.

6.The Applicants’ appeals against the Director’s decisions were dismissed by the Board on 6 February 2018 after hearing A1 in evidence and submissions for the 3 of them and upon finding no merits in their claims or appeals and that their claimed risk of harm from A1’s brother was not credible or reliable, and that the Board also confirmed the Director’s decisions.

7.The Applicants’ late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 27 April 2021 upon finding no good reason for their delay, that none of the proposed grounds for their intended challenge were reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended application (HCAL 920/2018 [2021] HKCFI 1167).

8.The Applicants’ subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 17 February 2023 (CAMP 561/2021 [2023] HKCA 193), and their Notice of Motion for leave to appeal to the Court of Final Appeal was also dismissed by the Court of Appeal on 21 March 2023 ([2023] HKCA 377).

Request To Make Subsequent Claim

9.Meanwhile on 19 July 2022 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that A1 will not be able to take care of her 2 sons all by herself without her Bangladeshi husband if refouled to Indonesia.

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, the Director on 9 August 2022 required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which A1 subsequently did by a letter dated 27 September 2022 in which she repeated her claimed concern of not being able to take care of A2 or A3 all by herself in the absence of her Bangladeshi husband upon their refoulement to Indonesia.

12.By a Notice of Decision dated 12 December 2022 the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis thereof was essentially the same as that of their previous claim, and that they failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claims were determined, or that those changes when taken together with the material previously submitted in support of their previous claims would give their subsequent claim any realistic prospect of success given the unchallenged findings and determinations of both the Director and the Board of the availability of state protection, support and assistances as well as reasonable internal relocation to all 3 Applicants upon their refoulement to Indonesia which will similarly be available to negate any risk even if real which may arise from their intended subsequent claim.

13.On 3 September 2024 the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for relief was given in their Form or supporting affirmation of the same date to which they just attached a copy of the decision but without putting forth any proper ground for their intended challenge, nor were they able to do so at the hearing of their application.

14.The Applicants were however by then also out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the 3-month period for them to file their Form 86 fell on 12 March 2023, the Applicants were therefore some 17 months late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicants’ case, a delay of 17 months must be considered as extremely substantial and inordinate, for which no explanation was provided in their Form or affirmation, and at the hearing of their application A1 just asserted that being unrepresented they were not aware of the deadline for them to file their application.

17.The record shows that the Director’s decision was sent on the same day of 12 December 2022 to the Applicants’ reported address which is the same as stated in their present application without being returned through undelivered post, and given the experience A1 already had from her previous claim, while ignorance of the procedural rules even if true in the Applicants’ case can never be accepted as any excuse for their non-compliance, I am not satisfied that the Applicants have provided any good or valid reason for their serious delay.

18.As for the merits, if any, of their intended application, as noted above that the Applicants have failed to put forward any proper ground for their intended challenge, and in the absence of any reasonably arguable basis for their intended challenge of the Director’s decision, or of any error of law or procedural unfairness in their process before the Director or in his decision being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

19.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicants’ request to make a subsequent claim, and while being mindful of the fact that A2 and A3 are still minors without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, or for that matter before the Director in their request to make a subsequent claim, but given the unchallenged findings by both the Director and the Board in their previous claims of no underlying matters which may support any potential minor-specific non-refoulement bases in their previous claims, nor do I find any in their present request to make a subsequent claim as correctly determined by the Director, I am not satisfied that there is any prospect of success in their intended application for judicial review, and shall accordingly treat the lack of legal representation for A2 and A3 as mere irregularity as applied in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and in the absence of any good reason for the Applicants’ serious delay, I refuse to extend time and accordingly dismiss their leave application.

Restricted Proceedings Order

20.Given the facts that the Applicants’ non-refoulement claims have already been finally and conclusively determined in the previous proceedings, ending with the order of the Court of Appeal dated 21 March 2023, but that the Applicants are still trying to re-litigate their cases by making this subsequent claim based on essentially the same facts and basis as before or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

21.Section 27 of the High Court Ordinance, Cap. 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless –

(a) it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b) it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1) –

(a) may be made on such terms and conditions as the Court of First Instance thinks just; and

(b) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

22.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

23.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.

24.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

25.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).

26.In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against all of them, to which A1 was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicants will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

27.Accordingly, I make the following order:

(1)  The Applicants be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicants in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to 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 Applicants do notify in writing each intended defendant or respondent of their 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 Applicants from any such intended defendant or respondent, that the Applicants do file a copy of each such response together with their 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 designated Judge should otherwise direct;

(6)  If the Applicants or any of them 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 this Court or the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the Applicants 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 designated Judge, 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 Applicants or either of them within any period of 3 months;

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave under 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; and

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

Disposition

28.The Applicants’ application for leave to apply for judicial review is dismissed.

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

Dated the 20^th day of March 2025

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