SANTI DIANA SARI v. DIRECTOR OF IMMIGRATION

HCAL 503/2023

[2023] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 503 OF 2023

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.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 29 August 2022 be refused;

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  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 29 August 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 35-year-old national of Indonesia who last arrived in Hong Kong on 29 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 February 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 11 December 2014, she did not depart and instead overstayed, and was arrested by police some 8 months later on 6 August 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 Indonesia she would be harmed or killed by her father for refusing to marry his creditor in settlement of his debts and/or by his creditor for refusing to marry him in settlement of her father’s debts.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 22 August 2016 and a Notice of Further Decision dated 20 October 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 from her father or his creditor upon her return to Indonesia as low due to absence of any evidence that they would still have any adverse interest in her after all these years since she left the country, that in any event these were private personal or family disputes between them without any official involvement 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 Indonesia with a large population of 256 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her father or his creditor to locate her.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 12 January 2018 after she failed to attend the scheduled hearing for her appeal without explanation 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 this Court on 14 September 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 appeal to the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 141/2018 [2018] HKCFI 2058).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 12 March 2021 (CAMP 179/2020 [2021] HKCA 277).

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 30 April 2021 ([2021] HKCA 614), and then by the Appeal Committee of the Court of Final Appeal on 25 February 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484A.

Request To Make Subsequent Claim

9.  Less than 3 months later on 18 May 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that her father is still looking to harm or kill her over her refusal to assist him with his debts and also upon discovering that she has engaged in a lesbian relationship in Hong Kong contrary to the Islamic law and conduct as a Muslim, and of which he has also informed the village head of their home village that the Applicant also fears of being harmed or killed by the village head and/or other villagers if refouled to her home country.

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 17 June 2022 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 27 July 2022 with further documents and information in support of her request.

12.  By a Notice of Decision dated 29 August 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 given the absence of any reliable evidence of her alleged lesbian relationship in Hong Kong or that her father could have learnt about it in Indonesia, and that even if such risks of harm from her father and the village head and/or local villagers were true that they were also localized ones that as found by both the Director and the Board in her previous claim that state/police protection and/or internal relocation would similarly be available to minimize or negate such risks upon her return to Indonesia.

13.  On 30 March 2023 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)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event whereas the Director’s decision just focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI or to consider that the Applicant would face serious risk from her enemies who will harm her due to her political and statistical view and that her country situation has become worse that her life will be in such danger if returned to her home country;

(3)  Procedural impropriety/irrationality in failing to conduct any screening interview for her new case that she would be seriously harmed or killed by her enemies or to inquire about her fear as stated in her claim;

(4)  Error/misdirection in law in that the Director failed to consider her new facts as provided in her subsequent claim showing the risk to her life from her enemies;

(5)  Error or misdirection of law in failing to consider her supporting documents submitted to establish her subsequent claim;

(6)  Procedural impropriety in failing to consider that the Applicant cannot relocate to other part of her home country as her enemies could easily trace her where ever she may hide in her home country;

(7)  Procedural impropriety in failing to assess her claim genuinely as the threatening messages submitted by her clearly show that her life would be in danger upon refoulement;

(8)  That there was no sufficient basis for the Director to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

14.  The Applicant was by then however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the 3-month period for her to file her Form 86 fell on 29 November 2022, the Applicant was therefore some 4 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of 4 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that she was then not feeling well and was hospitalized in June 2022 until sometime in July 2022 when she was discharged from hospital, but that she cannot remember much about what happened to her thereafter or why she was so late with her application.

17.  The record shows that the Director’s decision was sent on the same day of 29 August 2022 to her last reported address which is the same as stated in her present application without being returned through undelivered post, and in the absence of any documentary evidence such as medical reports to corroborate her bare assertions, and even if she had indeed been hospitalized until July 2022, there would still have been ample time and opportunity up to end of November 2022 for her to file her Form 86 within time, but for which she was unable to provide any explanation. In the circumstances I am not satisfied that the Applicant has provided any good or valid reason for her such serious delay.

18.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant as noted above are just all vague and bare assertions without any necessary or relevant details or particulars or elaboration as to how they apply to her case, or in what way did the Director or immigration officer err in the decision, or how did the Director fail to conduct proper inquiry or to consider her claim or her supporting documents or the relevant COI, or what relevancy is her political view has to do with her claim which even on the factual basis of her own case was just some private family disputes with her father and nothing political at all.

19.  As for her complaint of not given any screening interview for her request to make a subsequent claim, it is well established that there is no absolute right to an oral hearing or screening interview, as the ultimate question is one of fairness, and while an opportunity to make worthwhile or effective representations is an important requirement of fairness in most but not all situations, it does not follow that there must be an oral hearing or screening interview being held before a decision is to be made: ST v Betty Kwan [2014] 4 HKLRD 277.

20.  Given that it is for the Applicant in her request to make a subsequent claim to provide sufficient evidence in writing to satisfy an immigration officer of those requirements under Section 37ZO (2) of the Ordinance as noted above, and that on the basis of such evidence and information as provided that the immigration officer was entitled to take into account of the findings of credibility and facts made by both the Director and the Board in relation to the Applicant’s previous claim, it is in my judgment that the immigration officer in the exercise of his discretion was not at fault in not holding any screening interview for the Applicant’s request given his correct findings that the basis of her proposed subsequent claim is essentially similar in nature to that of her previous claim, and that any risk which might arise therefrom is similarly a localized one that can be avoided or negated by state/police protection and internal relocation as correctly found in her previous claim, I do not believe that any screening interview would have advanced or assisted her case for a subsequent claim. As such I do not find this complaint reasonably arguable for the Applicant’s intended challenge, nor do I find for all the reasons given any merit in her intended application.

21.  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, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Restricted Proceedings Order

22.  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 25 February 2022, but that the Applicant is still trying to re-litigate her case by making this subsequent claim based on essentially 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.

23.  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.

…”

24.  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.”

25.  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.

26.  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]).

27.  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 also 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]).

28.  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, to which she was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

29.  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

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

31.  A RPO in terms of paragraph 29 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