NGO QUOC PHUC v. DIRECTOR OF IMMIGRATION

HCAL 189/2023

[2023] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 189 of 2023

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 the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 13 September 2022 be refused;

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 13 September 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim 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 Applicant is a 32-year-old national of Vietnam who entered Hong Kong illegally on 23 September 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 20 April 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill the Applicant other than to press him to repay his debts, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 20 March 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 18 September 2020 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 926/2018 [2020] HKCFI 2340).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 23 April 2021 (CACV 521/2020 [2021] HKCA 542).

8.  The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 6 September 2021 ([2021] HKCA 1256), and then by the Appeal Committee of the Court of Final Appeal on 13 April 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Three months later on 15 July 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he has been informed by his family in Vietnam that his creditor is still looking for him everywhere that he still fears of being harmed or killed if refouled to his home country.

10.  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.”

11.  Accordingly, on 3 August 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

12.  By a Notice of Decision dated 13 September 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

13.  On 9 February 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forth the following grounds for his intended challenge:

(1)  That the Director reached the decision wrongly in assessing his subsequent claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life must be protected by the criminal law from killings that he may face if deported back to his home country;

(2)  That the Director failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(3)  That the Director acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to give enough weight to such evidence and ruled otherwise against the Applicant’s case;

(5)  That the Director was procedurally improper and unfair when assessing whether to accept or not the explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any;

(6)  That the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem that various human rights organizations had compiled reports on the matter which stated testament to the Applicant’s assertions and hence a failure to attain high standard of fairness required by the Wednesbury test that the decision should be considered unreasonable in the scope of public law; and

(7)  That the Director’s decision to refuse the Applicant’s claim was wrong and irrational.

14.  The Applicant was by then however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the 3-month period for him to file his Form 86 fell on 13 December 2022, the Applicant was therefore some 2 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of 2 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he attend the hearing of his application without any explanation for his non-attendance, and as the record shows that the Director’s decision was sent on the same day to him care of his lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for his serious delay.

17.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are just all vague and bare assertions without any details or particulars or elaboration as to how they apply to his case, or in what way did the Director or immigration officer err in the decision or that the decision was wrong or irrational, or what relevancy was State Acquiescence to his case which even on the factual basis of his own case at the highest was a private monetary dispute between him and his creditor without any official involvement and which as correctly found by both the Director and the Board in his previous claim would be negated by the availability of both state protection and internal relocation to the Applicant upon his return to Vietnam. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge, nor do I find any merits in his intended application.

18.  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 Applicant’s request for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Restricted Proceedings Order

19.  Given the facts that the Applicant’s non-refoulement claim has 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 13 April 2022, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

20.  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.

…”

21.  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.”

22.  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.

23.  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]).

24.  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]).

25.  In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, and to which he as noted above also failed to attend the hearing so as to answer or to raise any valid objection, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

26.  Accordingly, I make the following order:

(1)  The Applicant 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 Applicant 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 Applicant do notify in writing each intended defendant or respondent of his 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 his 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 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 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)  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

27.  The Applicant’s application for leave to apply for judicial review is dismissed.

28.  A RPO in terms of paragraph 26 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