Kulwinder Kaur and Others v. Director of Immigration

HCAL 2058/2024

[2025] HKCFI 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2058 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 in open court;

Order by Deputy High Court Judge Bruno Chan:

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

2.  A Restricted Proceedings Order (RPO) be made against the 1^st to 4^th 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 21 October 2024 refusing to allow the Applicants 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 Applicants, a mother now aged 45 (1^st Applicant (“A1”)) and her 3 children, elder son now aged 22 (2^nd Applicant (“A2”)), younger son now aged 19 (3^rd Applicant (“A3”)), and daughter now aged 16 (4^th Applicant (“A4”)), all nationals of India who arrived in Hong Kong on 4 December 2016 as visitors and with permission to remain as such up to 18 December 2016 when they did not depart and instead overstayed, and on the following day of 19 December 2016 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India that they would be harmed or killed by the families of 5 schoolmates of A2 who had assaulted him at school and of which A1 had reported to the police but which had infuriated those families which had political connections in the Applicants’ home village, and had threatened to harm or kill them due to A1’s action in involving the police.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 23 February 2018 the Director rejected the Applicants’ claims 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”).

4.In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and assessed the level of risk of harm from those 5 families of A2’s schoolmates upon their return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of any of them to seriously harm or kill any of the Applicants over what were essentially some private disputes between them 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 reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with her 3 children to other part of the country away from their home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate them.

5.The Applicants’ appeal against the Director’s decision was dismissed by the Board on 3 December 2018 after hearing A1 in evidence and submissions and upon finding no merits in their claims or appeal, and that it also confirmed the Director’s decision.

6.The Applicants’ application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge To on 13 May 2021 upon finding none of the proposed grounds for their intended challenge 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 2808/2018 [2021] HKCFI 1372).

7.The Applicants’ subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 2 August 2022 (CAMP 505/2021 [2022] HKCA 1020).

8.The Applicants’ Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 28 September 2022 (HKCA 1418), and then by the Appeal Committee of the Court of Final Appeal on 3 April 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Some 2 weeks later on 19 April 2024 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that their lives would still be at risk in their home country as their enemies of their previous claim are still looking for them everywhere that they fear of being harmed or killed if refouled to India.

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 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 by a letter dated 6 May 2024 required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did by several letters with information in support of their request in which they just repeated their claim as before and that their lives will still be at risk of being harmed or killed by the same claimed enemies of their previous claim if refouled to India.

12.By a Notice of Decision dated 21 October 2024 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 claims, 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.

13.On 7 November 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.I am of course mindful of the fact that A4 is still a minor at her present age of 16 and without legal representation in these proceedings as required under Order 80 rule 2 of the Rules of the High Court, nor was she in her request to the Director to make a subsequent claim, and hence it would be necessary for the Court to scrutinize and examine whether her request to make a subsequent claim had been properly and separately considered and determined by the Director in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases that might have arisen due to a significant change of circumstances since her previous claim was finally determined but which might not have been properly advanced to the Director due to lack of legal representation in her request to make a subsequent claim, as has been held to be the proper approach by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

15.In the present case, and as noted above, the Applicants including A4 just repeated their intended subsequent claim as the same of their previous claim, of which the Director was correct to find did not amount to any significant change of circumstances since their previous claim was finally determined, and as such I do not find any underlying matters which may support her potential minor-specific bases which might not have been properly advanced to the Director in her request to make a subsequent claim due to her lack of legal representation.

16.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 as I am not satisfied that there is any prospect of success or merits in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and dismiss their application, whereupon I shall treat the lack of legal representation for A4 in her present proceedings as a mere irregularity as adopted in Zoraydah v Torture Cliams Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh [2021] HKCA 53.

Restricted Proceedings Order

17.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 Appeal Committee of the Court of Final Appeal dated 3 April 2024, but that the Applicants are still trying to re-litigate their case 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.

18.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.

…”

19.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.”

20.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.

21.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]).

22.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]).

23.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 them, to which they were 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.

24.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 Applicant 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 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

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

26.A RPO in terms of paragraph 24 be made against the Applicants.

Dated the 24^th day of April 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