JIM BAHADUR GARBUJA AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 1422/2022

[2023] HKCFI 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1422 of 2022

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 and 2nd Applicants in open court;

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

2.  A Restricted Proceedings Order (RPO) be made against the 1^st and 2^nd 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 28 November 2022 refusing to allow the Applicants to make a subsequent claim for non-refoulement protection after their previous claim 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 are husband and wife respectively aged 53 and 38 years both of Nepalese nationality who arrived in Hong Kong on 3 January 2013 as visitors with permission to remain as such up to 8 January 2013 when they did not depart and instead overstayed, and were arrested by police respectively on 31 August 2013 and 3 September 2013. After they were referred to the Immigration Department for investigation, they jointly raised a non-refoulement claim on the basis that if they returned to Nepal they would be harmed or killed by their creditor over their unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 8 April 2015 and a Notice of further Decision dated 15 May 2017 the Director rejected the claims of the Applicants 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 decisions 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 their creditor upon their return to Nepal as low due to the low intensity and frequency of past ill-treatment from their creditor, that in any event it was a private monetary dispute between them and their creditor 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 Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicants as able-bodied adults with working experience to move to other part of the country away from their home district in large cities such as Kathmandu where it would be difficult if not impossible for their creditor to locate them.

5.  The Applicants’ appeals against the Director’s decisions were dismissed by the Board respectively on 22 May 2017 and 14 September 2018 after hearing them in evidence and submissions and upon finding no merits in their claim or their appeals, and that it also confirmed the Director’s decisions.

6.  The Applicants’ application for leave to apply for judicial review of the Board’s decisions was also refused by this Court on 21 September 2020 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 processes before the Board or in its decisions, and that there was no prospect of success in their intended application (HCAL 2001/2018 [2020] HKCFI 2343).

7.  The Applicants’ subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 17 September 2021 (CACV 624/2020 [2021] HKCA 1347).

8.  The Applicants’ Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 31 December 2021 ([2021] HKCA 2013), and then by the Appeal Committee of the Court of Final Appeal on 15 August 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Less than 2 weeks later on 26 August 2022 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that their creditor is still looking for them everywhere in Nepal and has also filed a court case against them for repayment of their loan that they still fear of being harmed or killed if refouled to their home country.

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 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.”

11.  Accordingly, on 14 September 2022 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 by a letter dated 10 October 2022 with additional information and documents in support of their request to make a subsequent claim.

12.  By a Notice of Decision dated 28 November 2022 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 claim, and that they failed to provide any or sufficient or relevant evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claim was determined, or that those changes when taken together with the material previously submitted in support of their previous claim would give their subsequent claim any realistic prospect of success given that their creditor was entitled in the circumstances to take proper legal action against them for the recovery of their loan under the current system in Nepal.

13.  On 5 December 2022 the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in their supporting affirmation filed on the same day and their subsequent written submissions dated 11 January 2023 they put forth the following grounds for their intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event but the Director’s decision just focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI conditions in assessing whether the Applicants would face serious risk from their enemies who will harm them due to their political view that their enemies will definitely harm them upon refoulement in particularly when their country situation has become worse that their life will definitely be in danger if returned to their home country;

(3)  Procedural impropriety/irrationality in failing to conduct any screening interview for their new case that as victims they will be killed or seriously harmed by their enemies;

(4)  Error/misdirection of law in failing to consider their new facts provided for their subsequent claim showing the risk to their lives from their enemies that they will be at danger upon refoulement;

(5)  Error/misdirection of law in failing to consider the supporting documents submitted in support of their claim which the Director failed to process or consider properly;

(6)  Procedural impropriety in failing to consider their fear of their enemies that there are genuine risk awaiting them that they could not relocate to other places as their enemies could easily trace them where ever they hide in their home country;

(7)  Procedural impropriety in failing to assess their claim genuinely which is different from their previous claim that their life would still be in danger upon refoulement;

(8)  That there was no sufficient basis to conclude that the Applicants and their family would not be at risk of being subjected to torture and/or CIDTP upon refoulement;

(9)  Failure to consider their fear that they will face if returned to their home country as their enemies will hunt and kill them that their lives will be in constant danger.

14.  Most of these grounds are however just some broad and vague assertions of the Applicants containing a few key words or phrases but without any necessary or relevant details or particulars or elaborations as to how they apply to their case or what relevancy are BOR 2 risk or torture or political views to their claims when the factual basis thereof on their own case is the same as in their previous claim just a private monetary dispute with their creditor without any official involvement, and that any risk arising therefrom as correctly found by both the Director and the Board in their previous claim would be negated by state protection and internal relocation available to them upon their return to their home country, while those documents submitted by them said to be in support of their claim are all related to gender-based violence or domestic violence in Nepal that none of which as correctly found by the Director is of any relevancy to their claim at all. As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicants, I do not find any of these grounds reasonably arguable for their intended challenge.

15.  As for their remaining complaint of not being given any screening interview for their request to make a subsequent claim, it is well established that there is no absolute right to an oral hearing or a screening interview, as the ultimate question is one of fairness, and while an opportunity to make worthwhile or effective representations is an important requirement of fairness in most but not all situations, it does not follow that there must be an oral hearing or for that matter screening interview being held before a decision is to be made: ST v Betty Kwan [2014] 4 HKLRD 277.

16.  Given that it is for the Applicants in their request to make a subsequent claim to provide sufficient evidence in writing to satisfy an immigration officer of those requirements under Section 37ZO(2) of the Immigration Ordinance as noted above, and that on the basis of such evidence and information as provided that the immigration officer was entitled to take into account of the findings of credibility and facts made by both the Director and the Board in relation to their previous claim including their unchallenged findings of the availability of state protection and internal relocation to the Applicants upon their return to Nepal to negate any risk arising from their private dispute with their creditor upon which their subsequent claim is also based, it is in my judgment that the officer in the exercise of his discretion was not at fault in not holding any screening interview for their request, and that this ground of the Applicants is also not reasonably arguable either.

17.  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 for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I accordingly refuse their leave application.

Restricted Proceedings Order

18.  Given the facts that the Applicants’ non-refoulement claim has 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 15 August 2022, 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, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

19.  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.

…”

20.  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.”

21.  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.

22.  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]).

23.  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]).

24.  In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against them, to which neither of them was unable to 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.

25.  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 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 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

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

27.  A RPO in terms of paragraph 25 be made against both Applicants.

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