ROBBIAH v. DIRECTOR OF IMMIGRATION

HCAL 1026/2021

[2021] HKCFI 2474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1026 of 2021

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.  Leave to apply for Judicial Review be refused; and

2.  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 (“Director”) dated 25 June 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.  The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 14 December 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 10 July 2011 or within 14 days of its early termination, but when it was prematurely terminated on 25 July 2010, she did not depart and instead overstayed in Hong Kong until her arrest by police on 10 January 2011. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her unpaid debts, for which she was later released on recognizance pending determination of her claim, but on 9 October 2012 she absconded and disappeared until more than 4 years later on 28 February 2017 when she was re-arrested by police and resumed her non-refoulement claim before the Immigration Department.  

Previous Non-Refoulement Claim       

3.  By a Notice of Decision dated 18 August 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 her 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 found no substantial grounds for believing that her claimed risk of harm from her creditor and followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute 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 Indonesia with a large population of 258 million people spread across a vast territory of more than 1.9 million 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 Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 10 May 2018 upon hearing her in evidence and submissions and upon finding no merits in her claim or her 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 Deputy High Court Judge Woodcock on 20 May 2019 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 873/2018 [2019] HKCFI 779).

7.  The Applicant’s subsequent appeal against the Learned Judge’s decision was dismissed by the Court of Appeal on 9 September 2019 (CACV 241/2019 [2019] HKCA 1029).

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 28 May 2020 ([2020] HKCA 88), and then by the Appeal Committee of the Court of Final Appeal on 1 June 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request to Make Subsequent Claim

9.  Meanwhile on 19 March 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she heard from her neighbor in her home village in Indonesia that her creditor is still looking for her that she fears that she will be killed if refouled to Indonesia, and that she is also concerned that she would be exposed to greater risk of the coronavirus upon her return to her home village where she believes that the environment and hygiene as well as medical service would not be as good as in Hong Kong.       

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 18 May 2021 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did on 28 May 2021 with additional information based on what she had been told by her neighbor from her home village in Indonesia.   

12.  By a Notice of Decision dated 25 June 2021 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 her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success, nor was her claimed fear of risk of the coronavirus in her home village substantiated by reliable evidence or COI, nor was it accepted or established under any of the applicable grounds.

13.  On 20 July 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation filed on the same day she put forth the following intended grounds for her intended challenge:

(1)  Procedural impropriety/failure to consider her new fact for her subsequent claim that she would still be in danger if refouled to her country of origin;

(2)  Procedural impropriety in failing to conduct any screening interview for her subsequent claim;

(3)  Procedural impropriety in failing to make proper COI inquiry on the current coronavirus pandemic situation; and

(4)  Error in law in failing to provide any opportunities for her to establish her claim that her life is still in danger in her home country.

14.  The Applicant’s complaints under Grounds (1) and (3) can be considered together and are plainly wrong, as the Director did clearly in paragraphs 12 – 14 of his decision properly, adequately and correctly consider and analyze the latest coronavirus situation in Indonesia for the purpose of assessing and determining her claimed fear of risk of being exposed to the disease upon her return to her home country, and in the absence of any reliable documentary evidence to the contrary from her, these complaints of the Applicant are clearly without basis, and in my view not reasonably arguable at all under any of the applicable grounds.

15.  As for her complaints under Grounds (2) and (4) which can also be considered together, I again do not find them reasonably arguable given the fact that she had in fact been provided ample opportunities to submit her evidence and information in support of her request including the provision of legal representative from Duty Lawyer Service as set out in paragraph 6 of the Director’s decision, while it is clearly within the Director’s discretion whether to hold a further screening interview for her request to make a subsequent claim after considering all the relevant circumstances of her case, and for which there is no absolute right by the Applicant, with the ultimate question being one of fairness: ST v Betty Kwan [2014] 4 HKLRD 277.

16.  In fact, up to now the Applicant has failed to show what prejudice she had suffered as a result of the lack of any further screening interview for her request, or what further information or evidence that she would have produced or advanced had a screening interview been held for her, nor did she attend the hearing of her present application so as to do so, for which she did submit a statement stating her wish to withdraw her leave application as she wants to return to her home country without providing any further details or particulars, but it is not clear whether it is a genuine intention on her part, as it is unfortunately one of the common delaying tactics employed in this type of applications.      

17.  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, I accordingly refuse her leave application.

Restricted Proceedings Order

18.  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 1 June 2021, but that the Applicant had tried to re-litigate her case by making this subsequent claim based on essentially the same facts and basis as before, and notwithstanding her latest statement to withdraw her application, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

19.  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.

…”

20.  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.  

21.  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]).

22.  In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against her, there is every risk that she may do so again thereby wasting further precious time and resources of the Judiciary.

23.  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 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 her 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; and

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

Disposition 

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

25.  A RPO in terms of paragraph 23 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