MOHAMMAD BABUL AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 771/2021

[2023] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 771 OF 2021

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 Applicants in open court

1.  Leave for 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 refusing to allow the Applicants, a married couple and their 2 minor children, 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 applicable grounds.

2.  The 1^st Applicant (“A1”) is a 59-year-old national of Bangladesh who arrived in Hong Kong on 20 January 2004 as a visitor with permission to remain as such up to 23 January 2004 when he did not depart and instead overstayed, and was arrested by police almost 4 years later on 12 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his former fellow supporters of the political party Awami League (“AL”) for quitting the party to join their rival Bangladesh Nationalist Party (“BNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

3.  While released on recognizance, he formed a relationship with the 2^nd Applicant (“A2”), an Indonesian now aged 49 who was then overstaying in Hong Kong after the termination of her last employment as a foreign domestic helper in 2006, and after subsequently becoming pregnant with their first child, A2 surrendered to the Immigration Department on 30 March 2009 and raised a torture claim on the basis that if she returned to Indonesia, she would be harmed or killed by her father and/or his creditor for failing to settle her father’s debts.

4.  On 31 May 2009 A2 gave birth to their daughter, the 3^rd Applicant (“A3”) now aged 14, whereupon A1 and A2 on 12 October 2009 registered their marriage in Hong Kong, and upon giving birth to their son, the 4^th Applicant (“A4”) on 13 May 2011, A2 included her 2 children in her torture claim based on the same fear of harm from her father and/or his creditor plus also fear of discrimination to the 3 of them upon their return to Indonesia without a husband or father as A1 had no right of residency in Indonesia, and after their torture claim was rejected, A2 then sought non-refoulement protection for herself and the 2 children on the same bases.

5.  Upon the commencement of USM in March 2014, the non-refoulement claims of all the Applicants were assessed jointly together as a family by the Director on the remaining applicable grounds other than torture risk.

Previous Non-Refoulement Claim

6.  By a Notice of Decision dated 26 January 2015 and a Notice of Further Decision dated 16 February 2017 the Director rejected the Applicants’ claims on all the remaining applicable grounds other than torture risk including risk of violation of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

7.  In his decisions the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm to A1 from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for them to politically target A1 for harm given that he was just a messenger without holding any official post of any importance in the party, while the same assessment was made of the claimed risks of harm from A2’s father or his creditor to A2, A3 and A4 which was considered as just a private monetary dispute between A2 and her father and with whom she had no further contact for years, that in any event in the absence of any official involvement in either claims that state or police protection would be available to all of the Applicants upon their return to their respective home country, and that reliable and objective Country of Origin Information (“COI”) show that supports and assistances from the Indonesian government as well as various other organizations would be available to A2, A3 and A4 in Indonesia to negate any risk of discrimination, and that reasonable internal relocation alternatives are also available in both Bangladesh and Indonesia with large populations spread across their vast territories that it would not be unduly harsh for A1 and A2 as able-bodied adults with working experience to move by himself or herself with her children to other part of the respective country away from their home district in large cities where it would be difficult if not impossible for anyone to locate them.

8.  The Applicants’ appeal against the Director’s decisions was dismissed by the Board on 9 June 2017 after hearing both A1 and A2 in evidence as well as submissions from lawyer for A1, A3 and A4 on 4 separate hearings and upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decisions.

9.  The Applicants’ application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Woodcock on 6 November 2017 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 315/2017).

10.  The Applicants’ subsequent appeal against the Deputy Judge’s decision was dismissed by the Court of Appeal on 22 January 2018 (CAMP 51/2017 [2018] HKCA 38).

11.  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 10 August 2018 ([2018] HKCA 492), and then by the Appeal Committee of the Court of Final Appeal on 8 May 2019 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

12.  On 20 August 2020 the Applicants in writing to the Immigration Department requested to make a subsequent claim on the basis that they have been informed by their respective family in Bangladesh and Indonesia that their claimed risks of harm in their previous claims still exist that they still fear of being harmed or killed if refouled to their respective home country.

13.  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.”

14.  Accordingly, on 12 October 2020 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”).

15.  By a Notice of Decision dated 19 March 2021 the Director refused to allow the Applicants to make a subsequent claim upon finding that the bases thereof were essentially the same as those of their previous claims, and that they failed to provide 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 claim any realistic prospect of success.

16.  On 26 May 2021 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 their supporting affirmation filed on the same day to which they just attached a copy of the decision but without putting forth any proper ground for their intended challenge.

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 to make their subsequent claims which on the factual bases of even their own cases are the same as their previous claims.

18.  While both A3 and A4 are still minors in their present application before me without legal representation as required under Order 80 Rule 2 of the Rules of High Court, as according to A2 that both the Official Solicitor and the Legal Aid Department had refused to act for them, the fact is that both were represented by counsel instructed by solicitors on private basis in their previous claim before the Board when any of their potential minor-specific non-refoulement bases would have been properly raised and advanced to the Board, while in their later request to make their subsequent claims before the Director, they were (together with their parents) also legally represented by lawyer from DLS, and that their proposed subsequent claims based essentially on their previous claims had also been properly considered by the immigration officer separately from their parents’ claims, of which I am unable to note any matter which may support their potential minor-specific non-refoulement bases but which might not have been advanced to the Board in their previous claim: see Fabio Arlyn Timogan [2020] HKCA 971; and Re Jasvir Singh [2021] HKCA 53.

19.  In the circumstances, and for all the reasons given, I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and accordingly I refuse their leave application.

Restricted Proceedings Order

20.  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 8 May 2019, but that the Applicants are still trying to re-litigate their cases by making this subsequent claim based on essentially the same facts and bases as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

21.  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.

…”

22.  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.”

23.  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.

24.  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]).

25.  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]).

26.  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 A1 or A2 were 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.

27.  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 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

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

29.  A RPO in terms of paragraph 27 be made against the 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