GARILLO RICHARD ORTAL v. DIRECTOR OF IMMIGRATION

HCAL 1308/2021

[2021] HKCFI 3014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1308 of 2021

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.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the Director of Immigration (the “Director”) is the proposed respondent.

2.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director dated 1 September 2021 (“the Director’s Decision”) refusing his subsequent claim of HCAL 589 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

3.  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 him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

4.  There is a memorandum dated 17 September 2021 from the Director of Legal Aid that the applicant has applied for legal aid.  Under section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91 & 91A, the matter should be adjourned for 42 days.  The Court has the discretion to lift this statutory stay of proceedings, such discretion has to be exercised judiciously.  In The China State Bank Ltd v Wong Chun Ying trading as Wing Fung Hong Company HCA 10825/1999, Hon Waung J. in Chambers, 6 April 2000, the court held that the questions to be asked are whether there may be some merits to the party applying for legal aid and whether there is any reason for justification for the late application. In my view, if the proceedings are clearly an abuse of the court proceedings, the statutory stay should be lifted in order to prevent the proceedings from being further abused by delay.

5.  Re-litigating the same matter without valid legal reasons is an abuse of the Court’s process.  See Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 at [2] & Re Paswan Shibu Lal [2018] HKCA 249 §15. As can be seen below, the applicant is re-litigating his original claim in his subsequent claim application.  I therefore decided to lift the statutory stay under section 15 of the Legal Aid Ordinance, Cap. 91. The matter should proceed accordingly.

The procedural history

6.  The applicant is an illegal immigrant from the Philippines. He raised torture claim with the Immigration Department on 19 January 2009, which he withdrew and subsequently applied for re-opening. The Director rejected his request. He did not appeal against the Director’s decision, which has become final. By way of two undated written representations received on 22 and 25 April 2016 respectively, he lodged non-refoulement claim on the grounds of BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention and subsequently on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance. 

His claim was rejected by the Director by a Notice of Decision dated 9 August 2016 and a Notice of Further Decision dated 15 August 2017.

7.  He appealed to the Torture Claims Appeal Board (the “Board”).  By its Decision dated 15 March 2018 (the “Board’s Decision”), the Board rejected his appeal.

8.  He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 30 April 2019 (the “Court’s Order”).

9.  His application to the Court of Appeal to appeal against the Court’s Order out of time was dismissed by the Court of Appeal on 1 August 2019.

10.  His application to the Court of Appeal to renew his application for extension of time to appeal was also dismissed by the Court of Appeal on 15 January 2020.

11.  His 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 20 May 2020.

12.  His 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 16 June 2021.

13.  He applied to the Director for a subsequent claim for non-refoulement protection by letter dated 28 June 2021.

14.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

15.  The factual basis of his claim is that if refouled, he will be harmed or killed by a drug dealer, Noel and his people because he had reported to the police against his drug business. He also feared that the police officer connected with Noel would harm or kill him.

16.  The Director found that his claim was not substantiated. He found that the level of risk of him being harmed or killed by Noel or his people if he returned to the Philippines was assessed to be low; that state protection was available to him and that internal relocation was an option open to him.

17.  The Board had conducted a rather extensive examination of his evidence and had finally come to the following conclusions:

“47. In summary, I find that the Petitioner’s claims regarding his problems with a drug dealer named Noel in the Philippines are not credible. The credibility of those claims is undermined by his failure to raise any claim until after he was apprehended by police after overstaying in Hong Kong for more than seven years. Further, I find that this factor also undermines the Petitioner’s claims as to events which he says occurred after his apprehension, as it raises concerns about the credibility of the basis of his claims.

…

49. … … I do not accept that his claims as to the events in the Philippines before he came to Hong Kong in 2002 are genuine. I also do not accept that his claims that his father and brother were killed by a drug dealer named Noel or by police associated with him in 2015 and 2017 respectively are credible. …”

18.  Under section 37 ZO of the Ordinance, he 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 realistic prospect of success.

19.  He relied upon the same facts of his dispute with Noel: Noel and his people are looking for him in order to kill him; the police officer is in association with Noel; his father and brother were suspected to be killed by Noel’s people, all of which had been considered in his original claim. He said that his sister in the Philippines told him that Noel is still looking for him.

20.  The Director does not accept that those are significant change of circumstances.  He also considers that such information, coupled with the original claim, will not give his subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

21.  The applicant has filed an affirmation in support of his application. He has set out the grounds as follows:

a. the Director’s Decision was biased and based on the wrong case management and he did not consider his case carefully with all the information and evidence available;

b. the Director had set the threshold in determining the realistic prospect of success too high, especially human lives are at stake;

c. the Director did not rely on any facts of the case in making his decision;

d. there was no interview by the immigration officer; and

e. there was no appeal to the Torture Claims Appeal Board, contrary to the principles of fairness and justice.

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, CA. §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 applicant asked the Court to help him.

24.  Grounds 22 a. to c. are his opinions or comments without any evidence in support of them. Grounds d. and e. are the procedures provided under the Ordinance. Under section 37ZP, which refers to section 37X, the immigration officer can rely upon written statement from the applicant. There is no mandatory interview for the applicant. According to the Director’s Decision, he was represented by duty lawyer for his subsequent claim application. The applicant has not submitted any authority to support his claim that there being no appeal to the Torture Claims Appeal Board is contrary to the principles of fairness and justice. This is his subsequent claim deriving from his original claim, which has gone through the procedure of appeal to the Board. The applicant can still apply for leave for judicial review of the Director’s Decision, which is his application before me now. There is nothing amiss in this procedure.

25.  The Director is entitled to reach his conclusion after considering his evidence as he did in this case.

26.  It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.  

27.  The applicant has no valid reason to challenge the Director’s Decision.

28.  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.

29.  Since there is no realistic prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

30.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his original 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 him. 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.

31.  RPO is appropriate for the present case. See The Secretarty 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.

32.  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 his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

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

34.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant asked the Court to review his case.

35.  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, 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 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 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

36.  The applicant’s application is dismissed.

37.  RPO in terms of paragraph 35 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