ATUKUNDA GRACE FLAVIA v. DIRECTOR OF IMMIGRATION

HCAL 1709/2021

[2022] HKCFI 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1709 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 proposed respondent is the Director of Immigration.

2.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 26 October 2021 (the “Director’s Decision”) refusing her subsequent claim of HCAL 336 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 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.

4.  On the day before the hearing fixed on 29 December 2021, the Court received a letter from Messrs. Patrica Ho & Associates asking for an adjournment of the case because they only had short notice of preparing the case for the applicant. They said they were working on pro bono basis. They had not confirmed that they would act for the applicant. But they would prepare an affidavit for her. The request was acceded and the matter was adjourned to 8 February 2022. The applicant filed her affidavit on 8 February 2022, the day of hearing.

5.  On the day of the hearing, there were two young ladies of the Hong Kong Dignity Institute who came with the applicant. Since they are not solicitors for the applicant, they could not represent the applicant. However, I allow one of them to assist the applicant to present her case to me be referring me to the relevant paragraphs of her affidavit. The applicant answered the questions from the Court.

The procedural history

6.  The applicant is an illegal immigrant from Uganda. She raised non-refoulement claim with the Immigration Department by written representation received on 5 April 2013 on the grounds of Torture risk; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

7.  Her claim was rejected by the Director by a Notice of Decision dated 23 August 2016 in respect of her claim on Torture risk, BOR 3 risk and Persecution risk. By Notice of Further Decision dated 26 July 2017, the Director rejected her claim on BOR 2 risk.

8.  She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 12 January 2018 (the “Board’s Decision”), the Board dismissed her appeal.

9.  She applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 30 June 2020 (the “Court’s Order”).

10.  Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 6 January 2021.

11.  Her notice of motion for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 18 May 2021.

12.  She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter of 24 May 2021.

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

The subsequent claim application

14.  The factual basis of her claim is that if she is refouled, she will be harmed or killed by Doreen, her husband, her ex-husband and the Resident District Commissioner (“RDC”) because Doreen did not want her to be a witness on the false stamps that she had used and her lands were taken by the banks.

15.  The Director found that her claim was not substantiated. He found that the alleged treatment did not attain a minimum level of severity; that state protection was available to her and that internal relocation was an option open to her.

16.  The Board affirmed the Director’s Decision. It further found that her evidence was not reliable as there were numerous inconsistencies, omissions and discrepancies.

17.  Under section 37ZO 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.

18.  In support of her subsequent claim, the applicant relied upon the same facts and in addition, that she is now living with her illegitimate daughter in Hong Kong. It would not be safe for her or her daughter to return to Uganda.

19.  The Director did not accept that there is significant change of circumstances and such information, coupled with the original claim, would not give her subsequent claim any realistic prospect of success.

The application for leave to apply for judicial review application

20.  The applicant has filed an affidavit in support of her application. She asked the Court to remit her case to the Board for re-consideration because she had not presented the salient facts to them and they had not considered those facts. Those salient facts relate to her background as a child and she was abandoned by her mother to her mother’s friend, who had maltreated her. She was gang raped when she was 17 and then was forced to marry a military man, Simon, with whom she did not have love. She then met her husband’s cousin David, with whom she had relationship and they had a son. Simon was furious when he knew about it. He had killed their son. Simon had also raped her. David disappeared. He might have been killed by Simon. Doreen was the guarantor for a loan from a bank. It was later found out that Doreen had forged documents. The applicant had knowledge of her misdeed and she feared that Doreen might harm her.

21.  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).

22.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that there is no reason to say that the Director was wrong.

23.  In the applicant’s affidavit, she had accused her duty lawyer of not having detailed interview with her. But she also admitted that she did not tell the above stories to her lawyer.

24.  I find that her request for her case to be remitted to the Board for re-consideration is misconceived. This is not the proceedings for that purpose because the application is in respect of her subsequent claim. Those facts above should have been considered by the immigration officer and the Board in her original claim. The above facts are inadmissible for this proceeding.  In fact, it is inconceivable that the applicant had not brought those facts to the courts in the High Court as she had applied for leave to apply for judicial review of the Board’s Decision and she also appealed against the court’s decision to the Court of Appeal.

25.  The applicant has raised no valid challenge to the Director’s Decision.

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

27.  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.

28.  Since there is no realistic chance of success in her intended judicial review of the Director’s Decision, I dismiss her application.

The RPO

29.  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.

30.  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.

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

32.  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. Before me, she said she had nothing to say.

33.  I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings on the same facts of the original claim 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 Deputy 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 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 this Court or 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 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 this Court or 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 within 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.

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

DISPOSITION

34.  The applicant’s application is dismissed.

35.  RPO in terms of paragraph 33 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