SHERPA YANGJI v. DIRECTOR OF IMMIGRATION

HCAL 1351/2022

[2023] HKCFI 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1351 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of 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:

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 22 September 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 902 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.  The applicant appeared before the Court on 4 January 2023.

The procedural history

4.  The applicant is a national of Nepal. She entered Hong Kong on 22 October 2013 as a visitor and was permitted to remain until 29 October 2013. She overstayed and was arrested by the police on 23 June 2014. She lodged her non-refoulement claim by written representation on 25 June 2014 on the grounds of Torture risk under 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 26 January 2017.

6.  She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 13 April 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 by its Order dated 17 April 2019 (the “Court’s Order”).

8.  Her application for extension of time to appeal against the Court’s Order to the Court of Appeal was refused by the Court of Appeal on 23 March 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 26 August 2021.

10.  Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 7 April 2022.

11.  She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 19 May 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 would be harmed or killed by (i) the people in Bhaganje (her village) as she was branded as witch; (ii) her paternal uncle Sherpa Lakpa Galu (“Galu”) as he would punish her for fleeing from him in 2013 and prevent her from exposing the crimes he had committed on her. She would not receive proper treatment as she was diagnosed as a HIV and Hepatitis C carrier. Also, she would become a social outcast because of her health condition.

14.  The Director found that her previous claim was not substantiated. She appealed to the Board.

15.  The Board, having considered the evidence, found that the chance of her villagers would harm her or kill her would be low; that her uncle would not be interested in her after a long lapse of time as her right to complain against him has passed under the law; that her conduct was inconsistent with someone who was fearful of Galu. The Board also found that state protection would be available to her if she were treated as a social outcast and internal relocation was a viable option open 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 a letter, in which she said that her current fear was that if she returned to Nepal, she has the following fears:

a.  she will be harmed or even killed by the people in her village because she was branded as a witch;

b.  she will be harmed or even killed by Galu because he wants to take revenge on her for her escape from him and prevent her from putting allegations against him; and

c.  she will be arrested by the Nepalese police because Galu had registered some false cases against her, including a false theft case.

18.  The immigration officer considered that a. and b. issues had been raised by the applicant and considered by the Director and the Board and they had been rejected. As to c. issue, the applicant had been given chance but was unable to produce any document in support of her claim. In any event, the false cases would be investigated by the police and there will be a trial on the case too.

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 of her subsequent claim.

The application for leave to apply for judicial review application

20.  The applicant has filed an affirmation in support of her application. In her affirmation she set the grounds below:

a.  the Director should not put a high threshold for her application;

b.  the Immigration Department has not considered her unique situation fairly or carefully;

c.  the Director’s Decision was not based on the facts, but on the TACB’s Decision against her;

d.  it is unfair for there being no screening interview for her;

e.  even though there is no documentary evidence, it is the fact that she is a wanted person and Galu would abuse his power to take revenge on her;

f.  it is unrealistic to rely upon police investigation and court proceedings for her safety as the system is corrupt and court proceedings will take a very long time to complete;

g.  the immigration officer erred for not accepting her evidence which she did not put forth in her previous claim;

h.  it is procedurally unfair for not having an opportunity to appeal to the Board; and

i.  the decision of the Immigration Department was biased and upon wrong case management power.

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 that she understood the Director’s reasons for his decision. When asked if she considered the Director was wrong in making his decisions as he did, she said she did not have much to say. She has to attend CIC every two weeks. She asked the Court not to keep her in the CIC.

23.  As to the grounds in paragraph 20, supra, a., b., c., e., f., g., and i. are her personal views or opinions without any evidence in support. As to d., the law provides that there should not be any interview for subsequent claim application. As there had been screening interview for the applicant in the previous claim with free legal representation, the subsequent claim application only concerns additional information. The applicant had been given the opportunity to set out her facts fully in the previous claim. There is nothing amiss for being no screening interview for the subsequent claim. For the same reason, the law provides no procedure for appeal to the Board as she had appealed the previous claim to the Board and failed. Ground h. also fails. Those grounds are not valid 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.

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