Sulrini and Others v. Director of Immigration

HCAL 629/2025

[2025] HKCFI 3184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 629 of 2025

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  1st and 3rd Applicants being present and 2nd Applicant being absent 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 applicants.

3.   Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd and 3^rd applicants’ application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The applicants are the mother, aged 51, her daughter, aged 9, and her son aged 7.  The 1^st applicant’s facts form the basis of their joint application.

2.This is the applicants’ joint application for leave to apply for judicial review of the decision of the Director of Immigration dated 7 March 2025 (the “Director’s Decision”) refusing their subsequent claim of HCAL 1605 of 2018 and HCAL 227 of 2020, ordered to be heard together by Order dated 20 August 2019 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

3.The Court, upon its own motion, has called upon the applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.

4.The 1^st applicant, on behalf of herself and her children appeared before the Court on 16 June 2025 admitted that she relied upon the same reasons in her previous claim in support of her subsequent claim application.

The procedural history

5.The 1^st applicant is an illegal immigrant.  She was a domestic helper here and her contract was prematurely terminated, but she did not depart and overstayed since 26 October 2014.  She gave birth to the 2^nd applicant on 24 January 2016.  She surrendered to the Immigration Department and lodged non-refoulement claim with the Director for herself and the 2^nd applicant.

6.The Director reject the 1^st and the 2^nd applicants’ application on 14 October 2016.  They appealed to the Board and the Board dismissed their appeal on 19 April 2018 (“the Board’s 1^st Decision”).

7.The 1^st applicant gave birth to the 3^rd applicant on 16 September 2018.  She lodged non-refoulement claim as the guardian ad litem for the 3^rd applicant with the Director, who refused their application on 31 October 2019.  The 3^rd applicant appealed to the Board, which dismissed his appeal on 20 October 2020 (“the Board’s 2^nd Decision”).

8.Acting for herself and the other applicants, the 1^st applicant then applied to the Court of the First Instance for leave to judicial review the Board’s Decisions by way of 2 separate applications.  The Court of the First Instance ordered the applications to be heard together, and it further dismissed their joint application on 11 March 2021.

9.They appealed to the Court of Appeal, which dismissed their appeal.  They filed a Notice of Motion for leave to appeal to the Court of Final Appeal.  The Court of Appeal dismissed their Notice of Appeal.

10.They applied to the Court of Final Appeal for leave to appeal and the Court of Final Appeal dismissed their application on 28 August 2024.

11.By letter dated 12 September 2024, the applicants applied for subsequent claim under section ZO of the Ordinance.

12.By the Director’s Decision, the Director refused their application.

The subsequent claim application

13.Under section 37ZO of the Ordinance, they have 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 realistic prospect of success.

14.Despite advice from the immigration officer, the 1^st applicant did not submit any additional information to the immigration officer to support their application.

15.The immigration officer therefore found that the applicants failed to satisfy those conditions under section 37ZO of the Ordinance and dismissed their application for subsequent claim.

The application for leave to apply for judicial review application

16.The applicants filed Form 86 on 12 March for leave to apply for judicial review of the Director’s Decision.

17.In her affirmation in support of her application, the 1^st applicant did not raise any specific ground to challenge the Director’s Decision.

Discussion

18.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).

19.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the 1^st applicant admitted that she relied on the same reasons in her previous claim in support of this application.

20.For the reasons given by the immigration officer, the immigration officer took the view that the applicants failed to satisfy the conditions in support of their application for subsequent claim.

21.Upon enquiry from me as to whether there are any child specific issues that should be considered by the Court for the children, the 1^st applicant said that she had nothing to say.

22.The applicants have not raised any valid ground to challenge the Director’s Decision.

23.I find that there is no realistic prospect of success in the applicants’ subsequent claim.  I dismiss their joint application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.The Director’s findings show that the applicants are 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.

25.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 Director 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.

26.In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their intention is clearly an abuse of the process.  The application should be viewed together with the procedural history of the case.

27.For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against her.  The 1^st applicant admitted that she relied on the same reasons in their previous claim in support of their subsequent claim application.

28.The 1^st applicant has been explained the proposed restricted proceedings order.  Upon being requested to show cause why the Court should not make the RPO against them, the 1^st applicant said she had nothing to say.

29.I am satisfied that, if not restrained, it is likely that the applicants 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 (referring to the 1^st, the 2^nd and/or the 3^rd applicant or any one of them) 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

30.The applicants’ application is dismissed.

31.RPO in terms of paragraph 29 be made against the applicants.

32.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the application of the 2^nd applicant and the 3^rd applicant a nullity.

Dated the 19^th 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