SERPUJA THAM v. DIRECTOR OF IMMIGRATION

HCAL 1313/2021

[2021] HKCFI 3292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1313 of 2021

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 the Applicant being absent 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:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 23 August 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.  The Applicant is a 38-year-old national of Nepal who arrived in Hong Kong on 25 July 2015 with permission to remain as a visitor up to 1 August 2015 when he did not depart and instead overstayed and was arrested by police on 27 October 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his creditor over his outstanding debts.

Previous Non-Refoulement Claim       

3.  By a Notice of Decision dated 22 June 2016 and  Notice of Further Decision dated 10 July 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 his 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 his creditor upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from his creditor, that it was a private monetary dispute 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 Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nepal away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for his creditor to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 23 February 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions.

6.  The Applicant’s application for leave to apply for judicial review of the decisions of the Director and the Board was also refused by this Court on 29 March 2019 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and that there was no prospect of success in his intended application (HCAL 480/2018 [2019] HKCFI 259).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 6 June 2019 (CACV 166/2019).

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 25 November 2019 ([2019] HKCA 1281), and then by the Appeal Committee of the Court of Final Appeal on 3 February 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Shortly thereafter on 25 February 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he has been informed by his wife that his creditor is still looking for him over his debts and has abducted and murdered his daughter, and hence he fears that he will be killed if refouled to Nepal.   

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 18 March 2021 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from the Duty Lawyer Service (“DLS”).

12.  By a Notice of Decision dated 23 August 2021 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 his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, that his allegation that his daughter was abducted by his creditor in June 2020 and was subsequently murdered is not supported by any reliable evidence other than hearsays from his wife and a letter allegedly written by some committee of his home village the authenticity of which is seriously doubted that there is no reason why any such documentary evidence could not have been produced by the Applicant almost one year after the alleged crime or that why his creditor has not been arrested by the police if the Applicant’s bare assertion is indeed true, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

13.  On 20 September 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just repeated his claim as before that the Director reached the wrong decision in assessing his non-refoulement claim without any proper inquiry and without carefully understanding his situation for which the immigration officers are invited to tour his country and ask those familiar with his case what real danger he would face if he were returned there instead of putting forth proper grounds for challenging the Director’s refusal of his request to make a subsequent claim.

14.  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, I accordingly refuse his leave application.

Restricted Proceedings Order

15.  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 3 February 2021, but that the Applicant still tried to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, and while he has recently on 5 October 2021 filed an affirmation to request to withdraw his application as he wants to go back to his home country as all his problems “now finished”, given the fact that he has not provided any further details or particulars as to how his alleged problems in his home country have indeed been resolved, and that he also failed to attend the scheduled hearing of his application, I shall next consider whether it would be appropriate, notwithstanding his latest request to withdraw, to instead make a Restricted Proceedings Order (“RPO”) against him.

16.  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.

…”

17.  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.  

18.  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]).

19.  In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, while his latest request to withdraw his application but without any further details in fact came about just one week after the Court had sent a letter to him inviting him to make further submission as to why the Court should not consider making a RPO against him, it is my firm view that without which the Applicant will likely continue to do so and thereby wasting further precious time and resources of the Judiciary.  If indeed he had truly intended to leave Hong Kong to return to his home country because all his problems had indeed been resolved, he would not be prejudiced by the RPO,

20.  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 any non-refoulement claim of the Applicant in the Court of First Instance unless with leave of the Court obtained under paragraph (2);

(2)     All applications for leave under paragraph (1) shall be made to this Court or 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 his 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 his 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 this Court or 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 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 this Court or 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)     This order shall cease to have effect at the end of 5 years from the date of this order; and

(11)     A copy of this Order shall be sent to the Registrar of the High Court.

Disposition 

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

22.  A RPO in terms of paragraph 20 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