SITCHON MERCEDITA DELA CRUZ v. DIRECTOR OF IMMIGRATION

HCAL 1035/2024

[2024] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1035 OF 2024

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

1.  The application for leave to apply for Judicial Review be dismissed; 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 (“the Director”) dated 24 May 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her 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 47-year-old national of the Philippines who last arrived in Hong Kong on 24 December 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 November 2019 or within 14 days of its early termination, but was arrested by police on 28 December 2018 for making a false representation to an immigration officer, and for which she was subsequently convicted and sentenced to prison for 4 months. After her discharge from prison on 3 April 2019 and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her step-father for disclosing his extra-marital affair with another woman to her mother.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 20 June 2019 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 assessed the level of risk of harm from her step-father upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her step-father to seriously harm or kill her other than some angry words uttered by him to her mother during their quarrels and were repeated to her by her mother on the phone while the Applicant was in Hong Kong, that in any event it was a private personal dispute between her and her step-father within the family only 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 the Philippines with a large population of 105 million people spread across a vast territory of more than 300,000 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 her home district in large cities such as Manila where it would be difficult if not impossible for her step-father to locate her.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 18 October 2019 after 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 this Court on 13 October 2023 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 3097/2019 [2023] HKCFI 2660).

7.  The Applicant’s subsequent appeal against the Court’s decision was also dismissed by the Court of Appeal on 30 July 2024 as wholly without basis or merits in her appeal (CACV 338/2023 [2024] HKCA 729).

Request To Make Subsequent Claim

8.  Even before the dismissal of her appeal the Applicant on 4 March 2024 in writing to the Immigration Department requested to make a subsequent claim on the basis that if she returned to the Philippines she would be harmed or killed by the families of some drug lords who have accused her of being an informer to the police that led to the subsequent shooting and killings of those drug lords by the police.

9.  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.”

10.  Accordingly, on 14 March 2024 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 by letters dated 4 March 2024 and 20 April 2024 with the following material and information:

(a)  That her uncle Guillermo and his son-in-law Santos were drug lords in her home district;

(b)  That they were on one occasion in 2017 killed by the local police who had also raided their home and confiscated drugs and weapons; and

(c)  Ever since then the families of those drug lords have accused the Applicant of being an informer to the police that led to them being killed by the police, and have swore to kill her in revenge if and when she returned to the Philippines.

11.  By a Notice of Decision dated 24 May 2014 the Director refused to allow the Applicant to make a subsequent claim upon finding that her intended subsequent claim of threats of harm from the families of those drug lords which if true already occurred in 2017 and well before her previous claim was raised in 2019 but had never been disclosed by her in her previous claim as not credible or plausible, that her credibility was further undermined by her failure to first raise such claim upon her last arrival in Hong Kong in December 2017 until more than 6 years later in March 2024 and only after her previous claim had been rejected, and that in any event 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 such change when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success given the nature of risk of her such subsequent claim even if true or real arose from a similarly private and personal dispute between her and the families of those drug lords only without any state or official involvement that the unchallenged findings by both the Director and the Board in her previous claim of the availability to the Applicant of state/police protection as well as reasonable internal relocations within the country upon her return to the Philippines would similarly apply to her proposed subsequent claim to negate and/or minimize any risk which may arise from her such subsequent claim.

12.  On 2 July 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation put forward various grounds which however wrongly stated the date of the Director’s decision under challenge as at 7 December 2023, and more significantly also referred to various matters in the decision such as her previous claim was raised in 2013, that it was based on the conversion of her religion to Islam, that the threats of harm were from the Hindu nationalists/extremists, as well as the concept of State Acquiescence and extra-judicial killings but none of which is relevant or applicable to her case and appeared to have been just copied from the application of some other claimant whose case has absolutely nothing to do with the Applicant’s proposed subsequent claim. As such, I do not find any of her proposed grounds relevant to or reasonably arguable for her intended challenge.

13.  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

14.  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 Court of Appeal dated 30 July 2024, but that the Applicant is still trying to re-litigate her case by making this subsequent claim based on essentially the same private nature of risk and basis as before, and given the adverse finding by the Director as to the credibility of her proposed subsequent claim which appears suspiciously as an attempt to delay her removal from Hong Kong, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

15.  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.

…”

16.  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.”

17.  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.

18.  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]).

19.  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]).

20.  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 it would be appropriate to make a RPO against her, to which she did not raise any written objection in her application, and instead on 15 July 2024 she wrote to request to “withdraw/close” her case as her life is no longer in danger and that she now wants to return to the Philippines as soon as possible, I am satisfied in the circumstances that a RPO should be made to ensure that the Applicant would not be able to subsequently change her mind and to continue to abuse the process and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary, and that if her withdrawal of her application were indeed genuine, I am also satisfied that she would not in any way be prejudiced by such an order.

21.  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 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 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

22.  The Applicant’s application for leave to apply for judicial review is dismissed and that the scheduled hearing is vacated.

23.  A RPO in terms of paragraph 21 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