RITA-SETIANI v. DIRECTOR OF IMMIGRATION

HCAL 1173/2021

[2021] HKCFI 2716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1173 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 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:

THE APPLICATION

1.  This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 26 July 2021 (“the Director’s Decision”) refusing her subsequent claim of HCAL 1438 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

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

3.  The applicant was absent at the hearing without prior notice to the Court. Having ensured that the notice of hearing was sent to her last known address and that the notice had informed her of the proposed RPO and she was invited to come to court to show cause why the Order should not be imposed on her, I decided that the matter should proceed on paper.

The procedural history

4.  The applicant is an illegal immigrant from Indonesia. She raised non-refoulement claim with the Immigration Department by written representation dated 19 May 2014 on the grounds of Torture risk under the Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention and subsequently under BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance.

5.  Her claim was rejected by the Director by Notice of Decision dated 5 May 2015 and Notice of Further Decision dated 20 April 2017 respectively.

6.  She appealed to the Torture Claims Appeal Board (the “Board”). By its respective Decisions dated 14 February 2017 and 6 July 2018 (the Board’s Decisions”) the Board rejected her appeal.

7.  She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 29 July 2019 (the “Court’s Order”).

8.  She appealed against the Court’s Order to the Court of Appeal and her appeal was dismissed by the Court of Appeal on 29 November 2019.

9.  Her 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 28 May 2020.

10.  She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 16 June 2021.

11.  By the Director’s Decision, the Director refused her application.

The subsequent claim application

12.  The factual basis of her claim is that if she is refouled, she will be harmed or killed by her stepmother and her father’s moneylender, the village head who wanted her to marry him as a way of settling the liability.

13.  The Director found that her claim was not substantiated. He found that the level of her being harmed or killed if she returned to Indonesia was assessed to be low; that state protection was available to her and that internal relocation was an option open to her.

14.  The Board agreed with the Director. The Board also found that her case was a private business and concerned no convention reasons; that state protection was available to her as there was no evidence that the state was involved and that internal relocation was an option open to her.

15.  Under section 37 ZO of the Ordinance, she 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.

16.  She relied upon additional information and her letter dated 13 July 2021 submitted to the Director through the immigration officer.

17.  The Director rejected her grounds in support of her subsequent claim for the reason that the information was hearsay evidence, which could not be tested. The Director does not accept those are significant change of circumstances as her additional reasons are only the updates of her original claim. Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

18.  The applicant has filed an affirmation in support of her application. She has raised the grounds below:

a.  Procedural impropriety: the Director had provided no screening interview for her to establish her fear upon refoulement. The Director had also failed to set out which grounds he refused to accept for her subsequent claim.

b.  Error/misdirection in law: the Director did not consider her supporting documents on her current situation in Indonesia that the authority or her enemy would hurt her upon her refoulement.

c.  The Director did not consider her subsequent claim properly and he did not understand the supporting documents.

19.  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).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  Under section 37ZP of the Ordinance, there is no statutory obligation on the Director to provide screening interview for the applicant. The Director has the right to request the applicant to supply information in support of her subsequent claim under section 37Y(1) and the applicant must attend the interview as requested by the Director under section 37ZA B.(1) of the Ordinance.

37Y.  Submission of torture claim form

(1)  A claimant must, on written request by an immigration officer—

(a)  complete a torture claim form, and the completed form must—

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b)   return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

37ZAB.   Claimant to attend interviews

(1)  A claimant must attend an interview at the date, time and place specified by an immigration officer in the written request referred to in section 37Y(1) to provide information and answer questions relating to the claimant’s torture claim.

22.  By letter dated 29 June 2021, the Director requested the applicant to provide further information and evidence in writing in support of her application. In this letter, the applicant was also advised to seek assistance from the Duty Lawyer Service. The Director has clearly considered the additional information supplied by the applicant [5].

23.  In paragraph 10 (a) of the Director’s Decision, the Director said that she claimed that she would face domestic violence and she would not expect that the Indonesian authority would be able to protect her.

24.  The applicant’s concern of COVID-19 has been considered and rejected with reason [15].

25.  The Director did not accept that the additional information amount to significant change of circumstances for the purpose of her subsequent claim. Such circumstances, when considered together with her original claim, will not give her a realistic prospect of success in her subsequent claim [17].

26.  The other grounds are only her personal opinions or comments without specific evidence in support of them.

27.  The applicant’s grounds fail.

28.  It is quite clear that the applicant is re-litigating her original claim in her subsequent claim application. According to the Director, the incidents after the determination of the original claim are the updates of the facts in the original claim.  I agree.

29.  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.

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

The RPO

31.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her 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 her. 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.

32.  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.

33.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and is irrelevant so far as her intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

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

35.  As the applicant was absent at the hearing, the Court was unable to hear from her. She would therefore be treated as forfeiting her right to show cause before the Court.

36.  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 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 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

37.  The applicant’s application is dismissed.

38.  RPO in terms of paragraph 36 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