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HCAL 663/2022
[2023] HKCFI 183
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 663 of 2022
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BETWEEN
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Sulistyowati Dwi Kurnia |
1st Applicant |
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Sulistyowati Ikhwan Yusuf Jalloh |
2nd Applicant |
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and |
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Director of Immigration |
Putative |
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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. The 1st applicant is the mother of the 2nd applicant, who is her son, aged 7. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 30 May 2022 (the “Director’s Decision”) refusing their subsequent claim of HCAL 815 of 2017 (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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process. The applicants appeared before the Court on 24 November 2022.
3. This is the adjourned hearing. The first hearing was adjourned because the applicants had applied for legal aid and time was given to the Director of Legal Aid (DLA) for processing pursuant to section 15 and regulation 7A of the Legal Aid Ordinance, Cap.91. The 1st applicant informed the Court that their application had been refused by the DLA.
The procedural history
4. The applicants are nationals of Indonesia. The 1st applicant entered Hong Kong on 9 August 2009 and remained lawfully as a foreign domestic helper until 25 January 2010. However, she did not depart and overstayed since 26 January 2010. She was arrested by the police on 18 January 2013 and lodged a non-refoulement claim on 3 March 2014. On 20 September 2016, she gave birth to the 2nd applicant and filed a non-refoulement claim on behalf of the 2nd applicant on 29 November 2016.
5. Their non-refoulement claims on the applicable grounds of the Torture risk, the BOR 2 risk, the BOR 3 risk and the Persecution risk[1], are collectively called “their claims”.
6. Their claims were rejected by the Director by a Notice of Decision dated 26 February 2016, Notice of Further Decision dated 16 December 2016 and Notice of Decision dated 24 April 2017 of the 2nd applicant’s claim respectively, which are collectively called “the Director’s Decisions”.
7. They appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 8 September 2017 (the “Board’s Decision”), the Board dismissed their appeal.
8. They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 11 December 2018.
9. Their appeal against the Court’s Order was dismissed by the Court of Appeal on 5 September 2019.
10. Their Notice of 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 9 June 2020.
11. Their application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 28 October 2021.
12. They applied to the Director for making a subsequent claim for non-refoulement protection by undated letter received by the Immigration Department on 21 March 2022.
13. By the Director’s Decision, the Director refused their application.
The subsequent claim application
14. The 2nd applicant, who was born on 20 September 2016, is the son of the 1st applicant. His non-refoulement application was filed by the 1st applicant adopting the same personal background and claim as the 1st applicant. In other words, the claim and appeal of the 2nd applicant stand and fall with those of the 1st applicant.
15. Briefly stated, the 1st applicant claimed that if she returned to Indonesia, she would be forced by her parents to marry Tri, who had lent 150 million Indonesian Rupiah to her father, and she also feared that Tri would force her to work as a sex worker. She also claimed on the 2nd applicant’s behalf that since the 2nd applicant was born out of wedlock, he would be killed by his grandparents.
16. The Director did not accept that the 1st applicant was a genuine non-refoulement protection seeker and rejected the 1st applicant’s claim. The Director also rejected the 2nd applicant’s claim on all applicable grounds.
17. The applicants appealed the Director’s Decisions to the Board. The appeal was heard on 31 August 2017, during which the 1st applicant answered questions raised by the Board. After hearing the 1st applicant and having considered the materials before it, the Board concluded that the applicants had failed to establish a case for non refoulement protection on any of the applicable grounds and dismissed their appeal.
18. Under section 37 ZO of the Ordinance, the applicants have 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.
19. In support of their subsequent claim, the 1st applicant submitted to the Director that her mother would kill her and/or her son, and her son would be discriminated if she and her son returned to Indonesia.
20. The Director found that the applicants rely upon the same or similar facts in support of their subsequent claim, such facts, when considered together with their previous claim, will not give them a realistic chance of success in their subsequent claim. He dismissed the applicants’ subsequent claim application.
The application for leave to apply for judicial review
21. The 1st applicant has filed an affirmation in support of their application. She did not set out any ground.
DISCUSSION
22. 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).
23. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant said that she cannot go back home because her son will be threatened as he was born out of wedlock. She understands that the reasons had been considered in her previous claim, but she wants the court to re-consider her reasons.
24. I note that the 2nd applicant is a minor in this case and he was not legally represented before the Director or this Court. Their case was considered by the Director with separate consideration for the 2nd applicant. The Director had taken into consideration the following factors in relation to the 2nd applicant in the Director’s Decision: that from the COI, there is state protection for children in need in Indonesia and it remains an option for her son to seek support and assistance from the Indonesian authorities or other humanitarian organizations in Indonesia[2].
25. The 1st applicant has not raised any special child-specific issues for her children before the Director or this Court. I shall treat the non-legal representation for the minors as a mere irregularity, relying upon the decision of the Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53:
“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”
26. The 1st applicant is unable to show any valid reason to challenge the Director’s Decision.
27. 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.
28. Since there is no realistic prospect of success in their subsequent claim, I dismiss their application for leave to apply for judicial review of the Director’s Decision.
The RPO
29. The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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.
30. 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.
31. In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.
32. For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against them. The 1st applicant represented the other applicants. She has been explained the proposed restricted proceedings order before this hearing.
33. Upon being requested to show cause why the Court should not make the RPO against them, the 1st applicant said she had nothing to say.
34. Having considered the 1st applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicants 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. The reference to the Applicant will cover the 1st applicant and the other applicants or anyone of them in this case.
(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 Applicants 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 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 Judge.
(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
35. The applicants’ application is dismissed.
36. RPO in terms of paragraph 34 be made against the applicant.
Dated the 19th day of January 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court
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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 19 January 2023
Sulistyowati Dwi Kurnia
Sulistyowati Ikhwan Yusuf Jalloh
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 19 January 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (25531) and (25532) in ImmD RA 7/37/C
(formerly RBCZ/9001013/16 & RBCZ/1680/14 and RBCZ/13661/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”); torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”)
[2] See paragraph 9 (i) of the Director’s Decision
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