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HCAL 57/2022
[2022] HKCFI 2034
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 57 of 2022
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Zoraydah |
1st Applicant |
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Rahman Arinda Zahra |
2nd Applicant |
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Rahman Hasif Ramadani |
3rd Applicant |
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Director of Immigration
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Putative 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 applicants.
Observations for the Applicants:
THE APPLICATION
1. The 1st applicant is the mother of the 2nd and the 3rd applicants, daughter aged 14 and son aged 12 respectively. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 23 December 2021 (the “Director’s Decision”) refusing their subsequent claim of HCAL 663 of 2019 (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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. The applicants were all present at the hearing. The 1st applicant asked for an adjournment because she had applied to the Director of Legal Aid on 22 April 2022. She is still waiting for the result. Upon the question why she only made the application despite the Court’s letter in January 2022 advising her to take step to obtain legal representation for her children, she said that it was because of COVID-19. The virus spread was prominent since March as the Court Registry closed between 7 March and 11 April 2022. It is obvious that the 1st applicant has not endevoured her best to expedite the application for legal aid. Her application for adjournment was refused and the matter proceeded.
The procedural history
4. The 1st applicant came to Hong Kong as a domestic helper in 2000. Her employment contract was terminated in November 2007. She had overstayed in Hong Kong and surrendered herself to the Immigration Department on 10 December 2007. The 2nd and 3rd applicants were given birth in Hong Kong on 20 January 2008 and 26 August 2009 respectively. By letter dated 26 September 2013, on behalf of herself and her two children, the 1st applicant lodged non-refoulement claim on the applicable grounds of Torture risk, the BOR 2 risk, the BOR 3 risk and the Persecution risk, collectively called (“their claim”).
5. Their claim was rejected by the Director by a Notice of Decision dated 30 April 2018.
6. They appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 10 January 2019 (the “Board’s Decision”), the Board dismissed their appeal.
7. They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 6 December 2019.
8. Their appeal against the Court’s Order was dismissed by the Court of Appeal on 9 June 2020.
9. Their 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 17 July 2020.
10. Their application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 19 August 2021.
11. They applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 12 October 2021.
12. By the Director’s Decision, the Director refused their application.
The subsequent claim application
13. As this is the family’s joint application, the family relied upon the 1st applicant’s facts. The factual basis of her previous claim is that if refouled, she and her children will be harmed by the village chief, Narko, who accused her of having defamed him for accepting bribe from her cousin, Sirus, to obtain the land which belongs to her.
14. The Director found that her claim was not substantiated. He found that there had not been any injury by Narko or his subordinates on her or her siblings in the past; that her children are irrelevant to the dispute; that the dispute is only localized and private in nature without any government involvement; state protection is available to her and her children and her children should be able to adapted to new environment.
15. On behalf of herself and her family, she appealed the Director’s Decision to the Board. The Board agreed with the Director. It further found that there was no evidence to show that the 1st applicant and her children would be at risk of being harmed by her enemies.
16. Under section 37ZO of the Ordinance, the applicants have 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.
17. In support of their subsequent claim, the 1st applicant submitted to the Director that there was threat from Sirus and there was a new buyer trying to evict Marioto and Seriano, her siblings from the family house, all of which had been considered in the previous claim and rejected.
18. The Director found that the applicants rely upon the same or similar facts in support of their subsequent claim, such facts, when considered together with their previous claim, will not give them a realistic chance of success in their subsequent claim. He dismissed the applicants’ subsequent claim application.
The application for leave to apply for judicial review
19. The 1st applicant has filed an affirmation in support of their application. She did not set out any ground.
DISCUSSION
20. 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).
21. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant said the Director did not give her time to obtain documentary evidence to show that her brother was beaten up by her enemy as she was told by her family member in Indonesia.
22. I note that there are two minors in this case and they were not legally represented before the Director or this Court. Their case was considered by the Director with separate consideration for the children. The Director had taken into consideration the following factors in relation to the minors in the Director’s Decision: that there was no physical assaults by Narko or his subordinates on her or her children in Indonesia, which shows no future risk if they return to Indonesia; that the Director and the Board considered that there would not be threat of serious harm to her and her children arising from the property dispute; the children should be able to adapt to the new environment if refouled; the minors would not face any rise of level of serious hardship. The 1st applicant has not raised any special child-specific issues for her children before the Director or this Court. I shall treat the non-legal representation for the minors as a mere irregularity, relying upon the decision of the Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53:
“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”
23. The 1st applicant is unable to show any valid reason 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 their subsequent claim, I dismiss their application for leave to apply for judicial review of the Director’s Decision.
The RPO
26. The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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 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.
28. In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their 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 applicants to appear before it to show cause why RPO should not be made against them. The 1st applicant represented the other applicants. She 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 them, the 1st applicant said she had nothing to say.
31. Having considered the 1st applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicants 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. The reference to the Applicant will cover the 1st applicant and the other applicants or anyone of them in this case.
(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 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 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
32. The applicants’ application is dismissed.
33. RPO in terms of paragraph 31 be made against the applicant.
Dated the 5th day of July 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court |
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);
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 Applicants
on 5 July 2022
Zoraydah
Rahman Arinda Zahra
Rahman Hasif Ramadani
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 5 July 2022
Director of Immigration
Putative Respondent’s ref. no.:
L/M (24661 to 24663) in ImmD RA 7/37/C
(Formerly RBCZ 2000063-2000065/14 & RBCZ 676-678/11)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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