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HCAL 1498/2022
[2023] HKCFI 538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1498 of 2022
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BETWEEN
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Nurhayati |
Applicant |
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Director of Immigration |
Putative |
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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 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 1 November 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1924 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 16 January 2023.
The procedural history
4. The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper on 3 September 2012. Her employment contract was terminated prematurely, but she was permitted to stay as a visitor until 9 September 2013. She overstayed since 10 September 2013. On 29 July 2013, she gave birth to her son, who has obtained permanent residency status. She lodged her non-refoulement claim on 18 March 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 7 April 2017.
6. She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 10 September 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 31 July 2020.
8. Her application to the Court of the First Instance for extension of time to appeal was dismissed by the Court of the First Instance on 30 December 2020 (“the Court’s Order”).
9. Her appeal against the Court’s Order to the Court of Appeal was refused by the Court of Appeal on 14 July 2021.
10. 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 29 October 2021.
11. Her 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 12 July 2022.
12. She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 16 August 2022.
13. By the Director’s Decision, the Director refused her application.
The subsequent claim application
14. The factual basis of her previous claim is that if she is refouled, she would be harmed by her family as she got pregnant with her boyfriend in Hong Kong.
15. The Director found that her previous claim was not substantiated. She appealed to the Board.
16. The Board considered the applicant’s evidence and for the reasons given, found that she would not be harmed by her family or the villagers; that there was no real chance that she would be subjected to any of the risks as she claimed; that relocation is an option open to her if she returned to Indonesia and that state protection was available to her.
17. 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.
18. In support of her application, the applicant has submitted a letter, in which she said that she is currently in fear of being discriminated upon her return to Indonesia because she is a single mother and a Muslim. She also claims that she will have a difficult life with her son because she has no place to live and has no money for living. In any event, the immigration officer considered that her current fear originates from giving birth to her son with her non-Muslim boyfriend in Hong Kong out of wedlock, which had been considered by the Board and rejected.
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. Thus, he refused her application for the subsequent claim.
The application for leave to apply for judicial review application
20. The applicant has filed an affirmation in support of her application. She said that her claim was not properly considered.
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 she understands the Director’s reasons for his decision. She also agreed that she relies upon the same facts in her previous claim for her subsequent claim.
23. Therefore, there is no valid ground from the applicant 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 asked for more time to stay in Hong Kong as her son is only 9 years old and his father has already passed away.
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.
Dated the 3rd day of March 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court
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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);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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 Applicant
on 3 March 2023
Nurhayati
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 3 March 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26348) in ImmD RA 7/37/C
(Formerly RBCZ/3000381/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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