TRAN THI LAN HUONG v. DIRECTOR OF IMMIGRATION

HCAL 1528/2023

[2023] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1528 of 2023

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; 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 apply for judicial review of the decision of the Director of Immigration dated 31 July 2023 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1254 of 2018 (the “previous 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.

3.  The applicant appeared before the Court on 25 September 2023.

4.  The applicant admitted that she relied upon the same reasons in her previous claim in support of her application for subsequent claim.

The procedural history

5.  The applicant is a citizen of Vietnam.  She left Vietnam for Hong Kong via China on 19 September 2014.  She entered Hong Kong illegally on 21 September 2014 and was arrested by police on 24 September 2014.  On 14 October 2014, she lodged her non-refoulement claim with the Immigration Department.

6.  Her non-refoulement claim with the Immigration Department was on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life 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.

7.  Her claim was rejected by the Director by a Notice of Decision and Notice of Further Decision respectively dated 12 April 2016 and 28 March 2017 on all applicable grounds of her claim.

8.  She appealed to the Torture Claims Board (the “Board”).  By Decision dated 4 May 2017, the Board dismissed her appeal.

9.  She applied for extension of time to apply for leave for judicial review of the Board’s Decision and pursue the matter in the High Court.  Her applications to the Court of the First Instance, the Court of Appeal and the Court of Final Appeal were refused.

10.  She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 29 May 2023.

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

The subsequent claim application

12.  The factual basis of her previous claim is that if she was refouled, she would be harmed or killed by her creditor called Hau because she had borrowed from him a loan of one billion Vietnam currency, which she was unable to repay.

13.  The Director found that her previous claim was not substantiated.  She appealed to the Board.

14.  The Board considered the applicant’s evidence and found that the applicant had failed to establish that she would be subjected to any real risk of being harmed or killed by the creditor upon her return to Vietnam.

15.  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.

16.  In support of her application, the applicant had submitted her statement together with 5 documents to the immigration officer.  The immigration officer considered that the additional information was irrelevant to her application.

17.  The immigration officer, having considered her evidence, concluded that there was no significant change of the circumstances since her previous claim was finally determined.

18.  The Director therefore did not accept that there is significant change of circumstances, which, coupled with the material in her previous claim, would give her subsequent claim a realistic prospect of success.  Thus, he refused her application for the subsequent claim.

The application for leave to apply for judicial review application

19.  The applicant filed Form 86 dated 29 August 2023 for leave to apply for judicial review of the Director’s Decision.  She has also raised the following grounds:

a.  the Director’s Decision is unreasonable and unfair as it had neglect BOR 2 risk protection;

b.  the Director had not attached appropriate weight on state acquiescence in this case;

c.  the Director had place too much weight on the country of origin information (“COI”) without taking into consideration of her personal background and experience and he had not taken into consideration the COI which said that state protection would not be available to her;

d.  the Director was unfair for not accepting her evidence and demanded her to respond to questions that she was unable to offer the answers;

e.  the Director had not taken into consideration the corruption and incompetency of the administration in her country, which is a very serious problem; and

f.  the Director had failed to attain high standards of fairness in her application.

Discussion

20.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision.  The Court will not usurp his fact finding power.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

21.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant admitted that she relied on the same reasons in her previous claim in support of her subsequent claim.

22.  As to the grounds in support of her application under paragraph 19, they are irrelevant as the applicant had admitted that she relied upon the same reasons in her previous claim in support of her subsequent claim application.

23.  There is no realistic prospect of success in her subsequent claim, I dismiss her application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her previous claim for a subsequent claim, which will amount to an abuse of the process.  The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against her.  See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

25.  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 Direcctor 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.

26.  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.

27.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against her.  The applicant has been explained the proposed restricted proceedings order before this hearing.

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

29.  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 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 and any appeal, including this Order, without leave of the Court of First Instance.

(2)   All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, 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 Court 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 Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7)   Notice of each decision by this Court or 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 Court, 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)   No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.

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

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

DISPOSITION

30.  The applicant’s application is dismissed.

31.  RPO in terms of paragraph 29 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