Gagandeep Kaur and Another v. Director of Immigration

HCAL 1074/2025

[2025] HKCFI 4074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1074 OF 2025

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 Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   Leave for the 1^st and 2^nd Applicants (“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 10 April 2025 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 the applicable grounds.   

2.The 1^st Applicant (“A1”) is a 35-year-old national of India who first arrived in Hong Kong on 15 January 2010 together with her divorced mother and 2 brothers (“said family members”) as visitors with permission to remain as such up to 29 January 2010 when they did not depart and instead overstayed, and on 3 February 2010 they surrendered to the Immigration Department and jointly raised their non-refoulement claims for protection on the basis that if they returned to India they would be harmed or killed by the terrorist/secessionist groups fighting for an independent Sikh homeland in Khalistan against the Indian government after having killed A1’s grandfather as a police officer in 1987.

3.While released on recognizance pending the determination of their claims, A1 married her Indian husband in Hong Kong and on 20 September 2015 gave birth to their daughter, the 2^nd Applicant (“A2”), and for whom A1 subsequently also raised a non-refoulement claim on the same basis and to be assessed jointly together with the claims of the said family members.       

Previous Non-Refoulement Claim          

4.By a Notice of Decision dated 28 October 2016 the Director rejected the claims of the Applicants and said family members 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 decision the Director took into account of all the relevant circumstances of the claims of the Applicants and said family members and found no substantial grounds for believing that their fear of being harmed or killed by those terrorist/secessionist groups upon their return to India was likely to materialize due to the absence of any past ill-treatment from them, that there is no evidence that any of them have ever been targeted by those terrorist/secessionist groups since A1’s grandfather was killed some 30 years ago as a policemen, that thereafter there had never been any threats made against any of them by any terrorist groups for more than 20 years before they left the country in 2010, that in the absence of any official involvement that state or police protection would be available to the Applicants and said family members if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that after the terrorist/secessionist movement for Khalistan was comprehensively defeated and put down by the Indian government in 1993 that there have been relative peace in the affected state of Punjab since 1995 that those terrorist groups no longer post any risk to anyone in that area, and that if necessary reasonable internal relocation alternatives are also 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 move safely with her daughter and/or her said family members to other part of the country away from her home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for anyone to locate them.

6.Their appeals against the Director’s decision were dismissed by the Board on 1 March 2019 after hearing A1 and her said family members in evidence and submissions and upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decision.

7.The application by A1 and A2 only without any of the said family members for leave to apply for judicial review of the Board’s decision was also refused by this Court on 5 January 2022 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 1901/2019 [2022] HKCFI 54).

8.The Applicants’ appeal against the Court’s decision was then dismissed by the Court of Appeal on 20 September 2022 (CACV 34/2022 [2022] HKCA 1158). It is of note that the Court of Appeal in its judgment did take into account of A2 as a minor but found no factual basis which could support her non-refoulement claim on any of the applicable grounds, that there was no issue of her nationality as an Indian, nor was there any material that may give rise to any concern that there may be non-refoulement grounds which related specifically to her only but had not been advanced to the Board or considered by it due to lack of legal representation for her in her appeal before the Board (see [2] and [17]-[18] of the judgment).

9.The Applicants’ subsequent Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 27 January 2023 ([2023] HKCA 90), and then by the Appeal Committee of the Court of Final Appeal on 11 June 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

10.Less than 1 month later on 8 July 2024 A1 in writing to the Immigration Department requested to make a subsequent claim for her and A2 on the basis that they still fear of being harmed or killed by the same terrorist/secessionist groups in their previous claims as she has been told by her family in India that the situation has become worse in her home country as some of her relatives have since for no known reasons passed away or met strange accidents that she fears that she and her daughter would still be targeted by those terrorist/secessionist groups if refouled to India, while A2 was born and raised in Hong Kong with no experience living in India that it would also be extremely hard for her to adapt to life in India.     

11.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.”

12.Accordingly, the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from Duty Lawyer Service (“DLS”).     

13.By a Notice of Decision dated 10 April 2025 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 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 claims any realistic prospect of success, while A1’s mother and one of her brothers who raised their previous claims jointly with the Applicants have since returned to India where they have been living risk-free and that they together with other members and relatives of A1’s family can offer support and assistance to both A1 and A2 as well as other relevant governmental departments and NGOs to help and support A2 to adjust and adapt to life in India upon their return to India.

14.On 8 May 2025 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 seeking relief was given in their Form or in A1’s supporting affirmation of the same date, nor was A1 able to do so at the hearing of their application other than just repeating their claims as before to the Director.                    

15.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. I am of course mindful of the fact that A2 being a minor at her present age of 10 years old is not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, but she was in her request to make a subsequent claim to the Director when both she and her mother were represented by a lawyer from DLS who assisted them in the preparation and provision of their statements and materials in support of their request, and of which the Director did properly assess and determine A2’s intended subsequent claim as submitted by her lawyer on her behalf, and having scrutinized the Director’s decision as well as her present application, I do not find any underlying matters that may support any potential non-refoulement grounds specific to A2’s circumstances and situations as an Indian national born to both Indian parents within their wedlock albeit outside India that may not have been advanced to this Court due to her lack of legal representation in these proceedings.    

16.In the circumstances, and for all these reasons I am not satisfied that there is any prospect of success in the intended application of either A1 or A2 for judicial review of the Director’s decision, and that for the lack of legal representation for the latter I shall treat as a mere irregularity as adopted in Zoraydah v Torture claims Appeal Board [2020] HKCA 442 and applied in Re Jasvir Singh [2021] HKCA 53. I therefore refuse to grant leave and accordingly dismiss their application.

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 11 June 2024, 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.

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 A1 was unable to answer or raise any valid objection for either of them 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 both or either 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 either 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 

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 18^th day of September 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