LUONG THI DAN v. DIRECTOR OF IMMIGRATION

HCAL 154/2022

[2022] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 154 of 2022

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;

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:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 5 January 2022 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 56-year-old national of Vietnam who last entered Hong Kong illegally in February 2014 and was arrested by on 9 January 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by the Vietnamese authorities over her sons’ evasion of their compulsory military service.

Previous Non-Refoulement Claim       

3.  By a Notice of Decision dated 14 January 2016 and a Notice of Further Decision dated 4 January 2017 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm that her feared treatment would materialize upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from the Vietnamese authorities, that there is no reliable evidence of any intention of the Vietnamese authorities to pursue after the Applicant or to take any action against her over her sons’ actions, that in the absence of any official involvement in what appeared to be the behavior of some local public security officials 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 Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 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 Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her to be located.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 13 September 2017 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 decisions.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Campbell-Moffat J on 11 December 2018 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 1013/2017 [2018] HKCFI 2282).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 11 September 2020 (CAMP 172/2019 [2020] HKCA 740).

8.  The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 21 January 2021 ([2021] HKCA 42), and then by the Appeal Committee of the Court of Final Appeal on 21 October 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Less than 2 weeks later on 3 November 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that her husband and elder son have disappeared in Vietnam and not heard of since 2020 that she suspects that they have been taken away by the Vietnamese authorities whom she believes are still going after her and her family that she fears of being harmed or killed by them if refouled to Vietnam.

10.  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.”

11.  Accordingly, on 11 November 2021 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 a letter dated 29 November 2021.

12.  By a Notice of Decision dated 5 January 2022 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that 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 those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success in the absence of any reliable evidence that her husband or elder son have indeed disappeared or have been taken by the Vietnamese authorities or that they still have any adverse interest in her after all these years since she left Vietnam.

13.  On 21 February 2022 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 filed on the same day she put forth the following grounds for her intended challenge:

     (1)     That the Director failed to give sufficient weight to the Applicant’s argument that the public officials in Vietnam would not provide reasonable protection for its citizens under the duty of due diligence and just brushed aside her claim that her husband and son have disappeared as mere hearsay; and

     (2)     That the Director failed to attain high standard of fairness required by the Wednesbury test in the decision by failing to properly consider the above argument that the decision should be considered unreasonable in the scope of public law.   

14.  Given those factual findings by the Director and the Board in their earlier decisions in rejecting the Applicant’s previous claim of fear of harm from the Vietnamese authorities over her sons’ evasion of military service, and which have all been confirmed as correct or without fault by the Courts on appeals at all levels, I am of the firmed judgment that the Director was entitled to reject, and correctly so, the Applicant’s bare assertions that her husband and son have indeed disappeared or that their disappearance have anything to do with the Vietnamese authorities that I do not find either of these grounds of the Applicant reasonably arguable for her intended challenge of the Director’s refusal to allow her to make a subsequent claim based primarily on bare assertions which have been rightly rejected in the process and proceedings of her previous claim.       

15.  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

16.  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 Appeal Committee of the Court of Final Appeal dated 21 October 2021, but that the Applicant is still trying to re-litigate her case by making this subsequent claim essentially relying on the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

17.  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.

…”

18.  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.”

19.  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.  

20.  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]).

21.  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 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]).          

22.  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 unless a RPO is made against her, she will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

23.  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 

24.  The Applicant’s application for leave to apply for judicial review is dismissed.

25.  A RPO in terms of paragraph 23 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