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HCAL 449/2021
[2021] HKCFI 2270
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 449 of 2021
BETWEEN
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Morena Imelda Sagun |
Applicant |
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Director of Immigration |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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 file the application for judicial review of the decision of the Director of Immigration dated 24 March 2021 (the “Director’s Decision”) refusing her application for a subsequent claim of HCAL 389 of 2018 (the “original 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.
The procedural history
3. The applicant is an illegal immigrant from the Philippines. She raised non-refoulement claim with the Immigration Department on 6 June 2016 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right of Life risk under Article 2 of the Bills of Right 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 18 May 2017.
5. She appealed to the Torture Claim Board (the “Board”). By its Decision dated 5 March 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 19 December 2018 (the “Court’s Order”).
7. She appealed against the Court’s Order to the Court of Appeal and her application was refused on 8 April 2019.
8. Her application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 12 July 2019.
9. Her application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 19 October 2020.
10. She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 23 October 2020.
11. By the Director’s Decision, the Director refused her application.
The subsequent claim application
12. The factual basis of her claim is that if she is refouled, she will be harmed or killed by her abusive husband and the men of drug syndicates due to her husband’s failure to settle or pay them the sale proceeds of the drugs. The Director found that the level of risk of her being harmed or killed by her husband or the drug syndicates, if she returned to the Philippines, was low; that state protection would be available to her and that internal relocation was an option open to her.
13. The Board did not believe her story that she left the Philippines because of the domestic violence and did not believe the story of the drug syndicate. It found that her evidence was devoid of merit and lacked any credibility at all. It came to such conclusions because her evidence at the hearing was inconsistent with her statement given to the Director and she was unable to give a satisfactory explanation for the inconsistencies.
14. 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 realist prospect of success.
15. The applicant relies upon the following new circumstances in support of her application:
a. her mother told her on the phone that her enemies had attacked her house in the Philippines; she got panicked and suffered shock and she was admitted to hospital;
b. the rate of infection and death due to COVID – 19 is increasing rapidly and therefore the Philippines is now a very dangerous place to live; and
c. there is documentary evidence to show corruption, police and drug syndicates situation in the Philippines
16. The Director rejected her grounds in support of her subsequent claim for the reasons that the issues of her abusive husband, the drug syndicates and police corruption had been considered in the original claim and that COVID -19 affects the world at large. All the circumstances do not constitute any significant change of circumstances which would give her the intended subsequent claim a realistic prospect of success.
The application for leave to file judicial review application
17. The applicant has filed an affirmation with which she had annexed the Director’s Decision without specifying any grounds in support of her application.
18. At the hearing before me, the applicant said that she did not want to go back because the syndicate was still looking for her. She had changed her appearance because she had to go back to her country every 2 years to see her friends there and she did not want to be recognized.
19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
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 [the Director].”
21. 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.
22. 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.
23. 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 Proceeding Order
24. 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.”
25. 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.
26. 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]
27. RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2002] 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 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129.
28. 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.
29. 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.
30. Upon being requested to show cause why the Court should not make the RPO against her, the applicant said that she hoped that she would be allowed to stay in Hong Kong as she had no family anywhere.
31. 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
32. The applicant’s application is dismissed.
33. A RPO in terms of paragraph 31 be made against the applicant.
Dated the 12th day of August 2021
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(M.O. WONG)(Ms) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 12 August 2021
Morena Imelda Sagun
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 August 2021
Director of Immigration
Putative Respondent’s ref. no.: QA L/M (22198) in ImmD RA 7/37/C (formerly RBCZ/12120/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (1997-1998) 1 HKCFAR 72, §48
[2] Ibid §§7 & 8
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