KHATUN ROZINA v. DIRECTOR OF IMMIGRATION

HCAL 518/2021

[2021] HKCFI 2402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 518 of 2021

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;

1.      Leave to apply for Judicial Review be refused.

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 4 February 2021 (the “Director’s Decision”) refusing her application for re-opening her claim in HCAL 832 of 2018 (the “original claim”) under section 37Y(2) of the Immigration Ordinance, Cap. 115 (the “Ordinance”), which provides that the applicant has to provide sufficient evidence in writing to satisfy the immigration officer that due to circumstances beyond her control, she had not been able to return a completed torture claim form.

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.

The procedural history

3.   The applicant is an illegal immigrant from Bangladesh.  She raised non-refoulement claim with the Immigration Department on 17 April 2016 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. 

4.   Her claim was rejected by the Director by a Notice of Decision dated 27 January 2017.

5.   She appealed to the Torture Claims Appeal Board (the “Board”).  By its Decision dated 2 May 2018 (the “Board’s Decision”), the Board rejected her appeal.

6.   She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 8 February 2019 (the “Court’s Order”).

7.   She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 17 May 2019.

8.   Her motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 4 July 2019.

9.   She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 26 August 2020.

10.   By the Director’s Decision, the Director refused her application.

The subsequent claim application

11.   The factual basis of her claim is that if she is refouled, she will be harmed or killed by the Awami League (“AL”) people because she was a member of its rival party.  She was sexually harassed by them. The Director found her evidence too far-fetched and unfounded and that state protection was available to her.  Internal relocation was also an option open to her.

12.   The Board agreed with the Director and found that she was an unreliable witness and the adjudicator did not believe her evidence.

13.   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.

14.   The applicant relies upon the following new circumstances, based upon what her mother told her, in support of her application:

a.  the AL people are still looking for her;

b.  the AL people had gone to her house and vandalized it;

c.  the AL people had beaten her mother up; and

d.  she cannot relocate herself as the AL people are still looking for her and she is afraid of being sexually exploited again.

15.   The Director rejected her grounds in support of her subsequent claim for the reasons that the information was hearsay evidence from her mother and that the events were speculations that her past ill-treatment and harm would materialize if she returned to Bangladesh.  The Director does not accept those are significant change of circumstances, which coupled with the original claim, would give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

16.   The applicant has filed an affirmation with which she had annexed the Director’s Decision without specifying any grounds in support of her application.

17.   At the hearing before me, the applicant asked the court to look at her case again.

18.   The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

19.   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 [the Director].”

20.   It is obvious that the Director had rejected her factual evidence in support of her claim.  The additional information will not change this situation.  There is no factual basis for the applicant to advance her subsequent claim.  Her submissions in Court do not advance her case.

21.   The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.   Since there is no reasonable prospect of success in her subsequent claim, I dismiss her application for leave to apply for judicial review of the Director’s Decision.

The Restricted Proceedings Order

23.   In accordance with Practice Direction 11.3, RPO should be made under the following circumstances:

“8. In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court's process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”

24.   As shown by the procedural history above, it is plain that the applicant refused to accept the unfavourable decisions made by the Director, the Board and the courts.

25.   The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her claim for a subsequent claim, categorically fitting in the description of

“the vexatious litigants typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.”^[1]

The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a restricted proceedings order (“RPO”) and the extended order against her.^[2]

26.   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.

27.   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.  The Court should take preventive measures against any abuse.

28.   For this reason, the Court has called upon the applicant to appear before it to show cause why a RPO should not be made against her.  The applicant has been explained the proposed RPO by the court interpreter outside this court before hearing.

29.   Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.

30.   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 on the same facts 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, without leave 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 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 designated Judge 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 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 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 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 Applicant within any period of 3 months.

(10)  This order shall cease to have effect at the end of 5 years from the date of this order.

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

31.   The applicant’s application is dismissed.

32.   A RPO in terms of paragraph 30 be made against the applicant.

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

[1] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1, §48

[2] Ibid §§7 & 8