Perez Adela Simeon v. Director of Immigration
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HCAL 1214/2025 [2025] HKCFI 3246 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1214 OF 2025
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: Introduction 1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 14 May 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her 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 Applicant is a 47-year-old national of the Philippines who last arrived in Hong Kong on 1 June 2016 as a visitor with permission to remain as such up to 15 June 2016 when she did not depart and instead overstayed, and some 3 months later on 26 September 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by some people from a neighboring village due to their private dispute with her family. Previous Non-Refoulement Claim 3.By a Notice of Decision dated 27 February 2018 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her 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 Applicant’s claim and assessed the level of risk of harm from those villagers from her neighboring village upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any real intention of those villagers to seriously harm or kill her other than her own suspicion and speculation, that in any event it was a private dispute between those villagers and her family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Cebu or Manila where it would be difficult if not impossible for anyone to locate her. 5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 26 February 2019 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision. 6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was refused by this Court on 30 April 2024 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 605/2019 [2024] HKCFI 1177). 7.The Applicant’s subsequent appeal against the Court’s decision was also dismissed by the Court of Appeal on 4 October 2024 (CACV 190/2024 [2024] HKCA 896). Request To Make Subsequent Claim 8.Less than 3 weeks later on 22 October 2024 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears of being harmed by those villagers from the neighboring village, while her extra-marital affair with another Filipino man in Hong Kong in 2021 when she was then working as a foreign domestic helper has recently been discovered by her husband and the wife of her boyfriend that both have threatened to kill her upon her return to the Philippines. 9.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:
10.Accordingly, the Director in writing required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did by a letter dated 16 December 2024 with the same information of her claimed fears of harm from those villagers from her neighboring village as before and from her husband and the wife of her boyfriend over her affair in Hong Kong. 11.By a Notice of Decision dated 14 May 2025 the Director refused to allow the Applicant to make a subsequent claim upon finding that one of the bases thereof was essentially the same as that of her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim of risk of harm from her husband or the wife of her boyfriend over her affair in Hong Kong any realistic prospect of success when such claim was never raised by the Applicant before in her previous claim that its credibility is considered as doubtful, and that in any event in view of the unchallenged findings by both the Director and the Board in her previous claim of the availability of both state protection and internal relocation to the Applicant upon her return to the Philippines to similarly negate whatever risks that may arise from her intended subsequent claim given the similarly private nature thereof and in the absence of any state or official involvement. 12.On 26 May 2025 the Applicant 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 her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. 13.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 Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her application. Restricted Proceedings Order 14.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Court of Appeal dated 4 October 2024, but that the Applicant is still trying to re-litigate her 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 her. 15.Section 27 of the High Court Ordinance, Cap 4 provides as follows:
…” 16.Relevantly, Section 27A also provides:
17.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. 18.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]). 19.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]). 20.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against her, to which she was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary. 21.Accordingly, I make the following order:
Disposition 22.The Applicant’s application for leave to apply for judicial review is dismissed. 23.A RPO in terms of paragraph 21 be made against the Applicant. Dated the 7th day of August 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
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Cases cited in this judgment