Nasiwa Sarah v. Director of Immigration

HCAL 864/2025

[2025] HKCFI 3324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 864 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 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 5 March 2025 (the “Director’s Decision”) refusing her subsequent claim of HCAL 2009 of 2018 (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 28 May 2025 and submitted that she relied upon the same reasons in her previous claim; but she also relied upon new ground of trafficking in person in support of her subsequent claim application. She submitted that she had applied for legal aid and asked the Court to adjourn the matter for the Legal Aid Department to process her application.

4.Since the law provides that the matter should be adjourned for 42 days for legal aid applications, I acceded to her request and the adjourn the hearing to 20 June 2025, which is more than 42 days from the date of her application for legal aid.

5.The applicant appeared before this Court on 20 June 2025. She said that the result of her application for legal aid was not yet known. The Court proceeded with the hearing.

The procedural history

6.The applicant is a national of Uganda. She entered Hong Kong as a visitor. But she overstayed. On 26 May 2015, she surrendered to the Immigration Department.  On 24 December 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boss Ken Kisakye as Ken suspected that she and her colleague Rahim Mohammed had stolen his money.

7.Her claim was rejected by the Director for the reason that her claim was not substantiated.

8.She appealed to the Torture Claims Appeal Board/Non-refoulement Claims (“the Board”). Having considered the evidence, the Board accepted the facts of her claim, but found that the facts did not support any of the applicable risks[1]. The Board therefore dismissed her appeal.

9.The applicant then applied to the Court of the First Instance for leave to apply for judicial review the Board’s Decision. The Court of the First Instance dismissed her application on 27 October 2022.

10.By letter dated 18 August 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.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 realistic prospect of success.

13.The applicant has, through her duty lawyer, submitted additional information to the immigration officer to support her application. Her story of new claim is based on being trafficked as a sex worker (and “fled” to Hong) from 2011 to 2015, which took place before her previous claim. [16] The immigration officer refused to accept her new claim as true. Besides the chronological events, the immigration officer had also taken into account that in her previous claim, she had an interview with the immigration officer in charge of her previous claim, with the presence of duty lawyer and an interpreter in 2016. In the interview, she only mentioned a business dispute with her employer, who alleged that she had colluded with another person to deceive USD50,000 from him. When she was asked if she had any other grounds or information to submit, she confirmed that she did not have more information that she would like the officer to take into consideration. [23] The immigration officer considered that such discrepancies and omissions created significant doubts about the reliability and coherence of her claim, casting suspicion on whether her fears were genuine or fabricated to strength her case. [25] The immigration had also noticed a number of inconsistences that sabotaged her credibility. [32]-[39]

14.Although the applicant had submitted the psychological report to support her non-disclosure of her new story in her previous claim, having considered the other materials and evidence, the immigration officer refused to accept the applicant’s new story. The immigration officer further considered that state protection will be available to her and internal relocation is viable if she returns to her country.[42]-[44]

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

The application for leave to apply for judicial review application

16.The applicant filed Form 86 on 10 April 2025 for leave to apply for judicial review of the Director’s Decision. Attached to Form 86 is a written submission, which stated the immigration officer was unreasonable not to believe her evidence and had failed to consider the country of origin information and the psychological report and the immigration had failed to consider her new claim of trafficking in person.

17.In her affirmation in support of her application, the applicant did not raise any further 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 applicant admitted that the issue of sex worker trafficking took place before the previous claim and she did not disclose it to the immigration office in her previous claim.

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.For the reasons given by the immigration officer, the immigration officer refused to accept the applicant’s evidence in her new reason of trafficking in person in support of her application and took the view that the applicant failed to satisfy the conditions in support of her application for subsequent claim.

22.The applicant has raised the grounds as set out in paragraph 14. The issue of credibility of her evidence is within the province of the immigration officer; and for the reasons given, I do not find the immigration officer’s decision not to accept her evidence Wednesbury unreasonable. The applicant has also referred to the case of Dang Thi Mai Thi v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCFI 779 at §9. In that case, the Board had given the applicant the benefit of doubt that she might be a person subject to trafficking. This issue would therefore be relevant for the Board’s consideration. This case is different from it because the immigration officer had, for the reasons given, rejected her evidence on trafficking in person.

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

The RPO

24.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.

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 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.

26.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.

27.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 admitted that she relied on the same reasons in her previous claim in support of her subsequent claim application. His alleged additional issue of human trafficking was rejected.

28.The applicant has been explained the proposed restricted proceedings order before this hearing. Upon being requested to show cause why the Court should not make the RPO against her, the applicant had nothing to say.

29.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

30.The applicant’s application is dismissed.

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

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