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HCAL 103/2023
[2023] HKCFI 751
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 103 of 2023
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BETWEEN
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Orense Marian Masangkay |
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 11 January 2023 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1814 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 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. According to the applicant, she has given birth to her son in Hong Kong. For reasons unknown to this Court, her son is not an applicant and the applicant is the only applicant in this application. The applicant appeared before the Court on 22 February 2023.
The procedural history
4. The applicant is a Filipino national. She had come to Hong Kong as domestic helper and returned to the Philippines. On 12 November 2013, she came as a visitor and was permitted to stay until 26 November 2013. She overstayed and was arrested for committing offences for which she was convicted and sentenced to two months’ imprisonment. On 14 February 2017, she lodged her non-refoulement claim on the grounds of Torture risk under Part VIIC of the Ordinance, BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.
5. Her claim was rejected by the Director by a Notice of Decision dated 9 August 2017.
6. She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 3 July 2018 (the “Board’s Decision”), the Board rejected her appeal on all applicable grounds.
7. She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court of First Instance by its Order dated 10 July 2020 (“the Court’s Order”)
8. Her application to the Court of Appeal against the Court’s Order was dismissed by the Court of Appeal on 13 July 2021.
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 7 January 2022.
10. Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 7 September 2022.
11. She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 November 2022.
12. By the Director’s Decision, the Director refused her application.
The subsequent claim application
13. The factual basis of her previous claim is that if she is refouled, she will be tortured or even killed by her husband because of her extramarital affair and pregnancy in Hong Kong.
14. The Director found that her previous claim was not substantiated. She appealed to the Board.
15. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it accepted the alleged facts of the applicant’s case. However, on those facts, there was no state involvement; no evidence that her husband would harm her in future if she returned to the Philippines; state protection and internal relocation were available to her.
16. 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 realist prospect of success.
17. In support of her application, the applicant has submitted additional materials, including some documents in support of her claim. In gist, she is currently in fear that if she returns to the Philippines, (a) she will be harmed or killed by her husband due to her affair and she gave birth to an illegitimate son in Hong Kong, (b) she will be prosecuted due to the adultery, and (c) her family had disowned her because of her conversion to Islam and they were furious because of her pregnancy in Hong Kong.
18. The Director considered that (a) and (c) are the issues in her previous claim, which had been considered and rejected by the Board; (b) is an issue that she did not raised in her previous claim and there is no evidence that her husband will file a claim of adultery against her in the Philippines. In any event, the claim will be processed under the judicial system in the Philippines. State protection and internal relocation for her and her son by the government and non-governmental organizations in the Philippines had been considered by the Board in her previous claim.
19. The Director therefore did not accept that there is significant change of circumstances, which, coupled with the previous claim, will give the subsequent claim a realistic prospect of success. Thus, he refused her application for the subsequent claim.
The application for leave to apply for judicial review application
20. The applicant has filed an affirmation in support of her application. However, she only enclosed the Director’s Decision without specifying any ground.
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, §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 said her son is a Hong Kong citizen and her application is for the benefit of her son’s education and future life and she wants to stay with him in Hong Kong.
23. The above reasons must have been considered by the Director, who has the power to make the determination as to whether the applicant can stay in Hong Kong under the law and the government policy. The Director has made the determination not to allow the applicant to stay in Hong Kong. These reasons do not form any valid ground to challenge the Director’s Decision.
24. 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.
25. 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
26. The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her 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 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.
27. 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 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.
28. 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.
29. 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.
30. Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.
31. Having considered the applicant’s explanation, 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 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
32. The applicant’s application is dismissed.
33. RPO in terms of paragraph 31 be made against the applicant.
Dated the 23rd day of March 2023.
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(C.S. FUNG (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 23 March 2023
Orense Marian Masangkay
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 23 March 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26803) in ImmD RA 7/37/C
(Formerly RBCZ/10510/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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