HANGILI GEDARA IMALKA PRIYADARSHANINE AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 610/2025

[2025] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 610 OF 2025

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J U D G M E N T

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THE APPLICATION

1.  This is the 1^st applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 4 March 2025 (the “Director’s Decision”) refusing her subsequent claim of HCAL 935 of 2019 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”). The 2^nd applicant is her daughter, aged 16.

2.  The 1^st applicant appeared before the Court on 14 April 2025. She admitted that she had omitted to join her daughter as a party in the judicial review application in the previous claim. She applied for leave to join her daughter in this application as the Director had considered and rejected the 2^nd applicant’s subsequent claim as well. This Court granted leave for the 2^nd applicant to be joined in this action. The 1^st applicant is therefore the guardian ad litem of her daughter, the 2^nd applicant.

3.  The 1^st applicant confirmed that the facts in support of her daughter’s claim are the same facts in support of her claim.

4.  The Court, upon its own motion, has called upon the 1^st applicant to appear before it to make enquiries on the above issues and 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 1^st applicant may take out further proceedings to assert her non-refoulement claim on the same facts of the case, thereby abusing the legal process.

5.  The 1^st applicant admitted that she relied upon the same reasons in her previous claim in support of her subsequent claim application.

The procedural history

6.  The 1^st applicant, aged 54, is a national of Sri Lanka. She came to Hong Kong as a visitor, but she overstayed and surrendered to the Immigration Department. She gave birth to the 2^nd applicant in Hong Kong on 22 January 2009.

7.  The applicants’ non-refoulement claims were made on the basis that, if refouled, they would be harmed or killed by (i) underground gangsters whom her 1^st ex-husband had offended; (ii) her 1^st ex-husband; (iii) her 2^nd ex-husband; (iv) her abandoned son; (v) the Buddhists in Sri Lanka.

8.  On behalf of herself and the 2^nd applicant, the 1^st applicant had raised a torture claim, which the Director rejected on 10 October 2013.

9.  The following applications were made by the 1^st applicant for herself and as guardian ad litem of the 2^nd applicant. I shall refer to the 1^st applicant alone.

10.  The 1^st applicant lodged a non-refoulement claim on the other applicable risks[1] other than the Torture risk.

11.  Her claim was rejected by the Director for the reason that her claim was not substantiated.

12.  She appealed to the Torture Claims Appeal Board/Non-refoulement Claims (“the Board”). Having considered the evidence, the Board found that the 1^st applicant was not a truthful witness and rejected her evidence. The Board therefore dismissed her appeal.

13.  The 1^st applicant then applied to the Court of the First Instance for leave to judicial review the Board’s Decision. The Court of the First Instance dismissed her application on 7 June 2022.

14.  She intended to appeal to the Court of Appeal, but she was out of time. She applied to the Court of the First Instance for extension of time to appeal. The Court of the First Instance refused her application.

15.  She appealed to the Court of Appeal, which dismissed her appeal. She took out another summons for extension of time to appeal before the Court of Appeal. The Court of Appeal dismissed her summons.

16.  She issued a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismissed her Notice of Motion on 8 July 2024.

17.  By letter dated 29 July 2024, the applicant applied for subsequent claim under section ZO of the Ordinance.

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

The subsequent claim application

19.  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.

20.  The immigration officer had advised the 1^st applicant to seek legal advice from the Duty Lawyers Scheme and to provide additional materials in support of their subsequent claim application. The 1^st had failed to provide any additional materials for the immigration officer’s consideration. [3]

21.  The immigration officer therefore found that the applicants failed to satisfy those condition under section 37ZO of the Ordinance and dismissed their application for subsequent claim.

The application for leave to apply for judicial review application

22.  The 1^st applicant filed Form 86 on 11 March 2025 for leave to apply for judicial review of the Director’s Decision. She did not raise any grounds in support of her application.

23.  In her affirmation in support of her application, the 1^st applicant did not raise any specific ground to challenge the Director’s Decision.

Discussion

24.  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).

25.  This Court bears in mind that the 2^nd applicant’s subsequent claim should be separately considered by the immigration officer as held by the Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020. It is obvious that the immigration officer had not done so.

26.  The Court will also bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that she relied on the same reason in her previous claim in support of this application. The Court asked the 1^st applicant whether she would like to raise any child-specific issue, which was not raised before the Director as they were not legally represented, for its consideration. She had raised the issues below for this Court’s consideration.

(1)  Her husband may harm her daughter as well.

(2)  She has been staying in Hong Kong for 20 years. Her daughter is now 16. She does not speak the language of Sri Lanka. She only speaks English and Chinese. If she returns to Sri Lanka, she has to enroll in the expensive schools which teach in English. But she cannot afford the expense.

27.  The reasons above do not support the applicants’ application. Her evidence on the facts had been rejected by the Board. There is no evidence in support of ground (1) above and she did not provide the immigration officer with such evidence. There is no evidence that all government schools in Sri Lanka do not use English as the medium for teaching. Even if this issue is accepted, it does not satisfy the requirements of any of the applicable risks.

28.  The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

29.  Before me, there is no evidence that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the immigration or considered by him/her because of the lack of legal representation on his behalf before him/her.

30.  I find that there is no realistic prospect of success in the applicants’ subsequent claim. I dismiss their joint application for leave to apply for judicial review of the Director’s Decision.

The RPO

31.  The Director’s findings show that the 1^st 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.

32.  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.

33.  In my view, the fact that the 1^st 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.

34.  For this reason, the Court has called upon the 1^st applicant to appear before it to show cause why RPO should not be made against her and her daughter. The 1^st applicant admitted that she relied on the same reasons in her previous claim in support of her subsequent claim application.

35.  The 1^st applicant has been explained the proposed restricted proceedings order before this hearing. Upon being requested to show cause why the Court should not make the RPO against her and her daughter, the 1^st applicant made her submissions under paragraph 24. They are not valid reasons for this Court to refrain from making the RPO.

36.  Having considered the 1^st 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.

37.  I note that the 2^nd applicant was not a party in the previous claim. Since her claim relies upon the 1^st applicant’s facts and she is a party in this subsequent claim application, I consider that it is appropriate to make the RPO cover her as well. I shall therefore make the RPO in terms below:

(1)  The Applicant (refers to the 1^st and the 2^nd applicants or either of them) 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

38.  The applicants’ application is dismissed.

39.  RPO in terms of paragraph 37 be made against the applicants.

40.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.