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HCAL 313/2024
[2024] HKCFI 1138
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 313 of 2024
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BETWEEN
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Bui Van Toan |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 apply for judicial review of the decision of the Director of Immigration dated 12 January 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2437 of 2018 (the “previous 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 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.
3. The applicant appeared before the Court on 18 March 2024. Before the Court, the applicant agreed that he relied upon the same issue in his previous claim; but he said that the creditor and his people had gone to his parents and they beat up his father. However, after the hearing and before the Court issues Form CALL-1 for its decisions, the applicant submitted a written statement, in which he said that he opposes any RPO because he had raised reasonable and new materials in support of his subsequent claim application. I shall deal with them below.
The procedural history
4. The applicant is a national of Vietnam. He came to Hong Kong on 26 August 2015 illegally from China. He surrendered himself to the Immigration Department on 1 September 2015. He lodged his non-refoulement claim on 18 November 2015.
5. His previous claim is based upon his fear that he would be harmed or even killed by his creditor, Tran Van Yen as he was unable to repay the loan.
6. The Director assessed his claim on the Torture risk, BOR 2 risk, BOR 3 risk and Prosecution risk[1]
7. By Notice of Decision dated 14 December 2017, the Director rejected his claim as they were not substantiated.
8. He appealed to the Board. By the Board’s decision dated 13 September 2018 (“the Board’s Decision”), the Board dismissed his appeal and confirmed the Director’s decisions in the Notice of Decision.
9. He applied for leave for judicial review of the Board’s Decision. The Court of the First Instance dismissed his application. He pursued the matter all the way to the Court of Final Appeal, which dismissed his leave application on 12 October 2023.
10. By a letter of 26 October 2023, he applied to the Director for a subsequent claim.
11. By the Director’s Decision, the Director refused his application.
The subsequent claim application
12. Under section 37ZO 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 realist prospect of success.
13. The applicant submitted a letter dated 29 November 2023 together with 2 photographs, in which he stated that his creditor and his people had gone to his parents’ premises, causing troubles to his family members. He further said that the creditor had connection with the police because his parents had reported the matter to them, but they took on action. The 2 photographs show a fire fighting scene and another scene of people fighting each other.
14. Having considered the additional materials submitted, the immigration officer took the view that there was no evidence that the creditor was in connection with the police. It is only his speculation. The photographs do not show his creditor was setting fire or beating the people there. The Board had considered his case in his previous claim and rejected it.
15. Therefore, the immigration officer did not accept that there had been significant change of circumstances since the applicant’s previous claim was finally determined. The Director thus refused the applicant’s application for the subsequent claim.
The application for leave to apply for judicial review application
16. The applicant has filed Form 86 dated 14 February 2024 to apply for leave for judicial review of the Director’s Decision.
17. The applicant has filed an affirmation in support of his application, in which he reiterated his reasons for coming to Hong Kong in order to avoid his creditor.
Discussion
18. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
19. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he agrees that his subsequent claim relies on the same reasons of his previous claim. However, his father was hit by his creditor (“the First creditor”). In his written statement subsequently submitted to the Court, the applicant submits that there had been significant changes in Vietnam. He believes that such changes will give him realistic prospect of success in his application. The alleged significant changes are set out below.
(1) His family members were harassed or beaten by the creditor in 2023 by the first creditor.
(2) Between June and September 2022, his wife borrowed a loan of about HK$300,000 from another creditor Nguyen Thi Lan (“the Second creditor”) for setting up a shop of tattooing services. At that time, he and his wife were in Hong Kong. The loan agreement was sent to Hong Kong for the signature of himself and his wife. It became a loan jointly made by himself and his wife. Between July and October, the shop opened for business. Two tattooing operators were employed. There were customers for 5 months. Then the business ran down that caused him and his wife bankrupt and the shop was closed down. The Second creditor and his people went to his family’s premises to ask for the whereabouts of him and his wife. They threatened that they would get the triad members to kill them. On 23 March 2023, the Second creditor brought some people to his family’s premises and asked his parents of their whereabouts.
(3) He did not disclose the Second creditor in support of his subsequent claim application because he thought that he might do so at an interview with the immigration officer. Therefore, in his statement he only mentioned the First creditor.
20. Under 37ZA of the Ordinance, the applicant has a statutory obligation of making prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts.[2] As the applicant deliberately concealed the changes of circumstances from the immigration in his application for subsequent claim, he has no reason to find fault with the immigration officer’s assessment of the evidence before him. As decided by the Court of Appeal in TK’s case, the finding of the facts is within the province of the Director and this Court should not interfere without valid reasons from the applicant. I do not accept that he considered that he might disclose the additional facts to the immigration officer at the interview. He should have disclosed such additional materials to the immigration officer when he received the Director’s Decision, which he did not do. Even if the additional materials are taken into consideration, the fear in support of the applicant’s previous, that is, he may be harmed or killed by the First creditor because he is unable to pay off his debt, remains the same for the Second creditor. There is no difference in substance in respect of his fear.
21. I agree with the immigration officer that there has not been significant change of circumstances, which taken together with the previous claim, will give a realistic prospect of success in his intended subsequent claim.
22. There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.
23. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The RPO
24. The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous 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.
25. RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Director 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.
26. 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.
27. 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 RPO was explained to the applicant before the hearing. The applicant said if he returned to Vietnam, the creditor would harm him, his wife and his son. This is not a valid reason to persuade this Court that a RPO should not be imposed upon him.
28. I am therefore 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 and any appeal, including this Order, without leave of the Court of First Instance.
(2) All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, 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 Court 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 Court for a decision as to whether they should be permitted to continue or should be dismissed.
(7) Notice of each decision by this Court or 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 Court, 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 within this Order unless leave to appeal has been granted by the Court.
(11) This order shall cease to have effect at the end of 5 years from the date of this order.
(12) A copy of this Order shall be sent to the Registrar of the High Court.
DISPOSITION
29. The applicant’s application is dismissed.
30. RPO in terms of paragraph 28 be made against the applicant.
Dated the 10th day of May 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 10/5/2024
Bui Van Toan
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/5/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (28848) in ImmD RA 7/37/C (formerly RBCZ/14266/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] They refer to :
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
[2] 37ZA. Duties of claimant
(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—
(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;
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