RUFINA MARIA v. DIRECTOR OF IMMIGRATION

HCAL 464/2023

[2023] HKCFI 1414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 464 of 2023

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 Applicant being present 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 19 May 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 2436 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 24 April 2023.

The procedural history

4.  The applicant is a national of Indonesia. She came to Hong Kong to work as a domestic helper in 2015. She finished her employment contract and left Hong Kong. Then she came to Hong Kong again on visitor’s visa for a number of times. The last time she came as a visitor was on 26 December 2016. She overstayed since 26 January 2017. On the same day she surrendered to the Immigration Department and lodged non-refoulement claim by way of 2 written significations respectively dated 10 February 2017 and 20 February 2017 on the grounds of Torture risk under Part VIIC of 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 9 March 2018 on all applicable grounds of her claim.

6.  She appealed to the Torture Claims Board (the “Board”). By Decision dated 5 October 2018, the Board dismissed her appeal.

7.  She applied for leave for judicial review of the Board’s Decision and her application was rejected by the Court of First Instance’s Order dated 28 July 2020 (“the Court’s Order”).

8.  Her application to the Court of Appeal against the Court’s Order was dismissed by the Court of Appeal on 18 February 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 24 May 2021.

10.  Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 29 March 2022.

11.  She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 13 April 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 feared that she would be harmed by her creditor, the loan shark, Mr. Augus Wahyudi.

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

15.  The Board considered the applicant’s evidence. The Board found that the applicant’s evidence was not reliable and that she admitted that she was trying by whatever means to extend her stay in Hong Kong.

16.  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 realist prospect of success.

17.  In support of her application, the applicant had submitted additional information to the immigration officer. The gist is that the risk of harm from the loan shark no longer exists. As to her allegation of having same sex relationship with another female in Hong Kong, she admitted that this relationship occurred before she lodged her non-refoulement claim. But she did not mention it to the immigration officer or to the Board. The immigration did not believe her evidence of such relationship as there was no reason for her to forget mentioning to the immigration officer and the Board. Furthermore, the immigration officer takes the view that such same sex might cause discrimination in the applicant’s country, but it is not a ground for non-refoulement claim.

18.  The Director therefore did not accept that there is significant change of circumstances, which, coupled with the previous claim, would 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

19.  The applicant has filed an affirmation in support of her application, in which she set out the reasons below to support her application.

a.  The Director had placed too high a threshold in determining the realistic prospect of success. The Director is therefore biased and he did not make his decision based on facts of the case.

b.  The Director has not taken her unique situation into account fairly or carefully.

c.  There was no interview for her subsequent claim application and it is unfair.

d.  It is not fair to ignore the evidence of her father’s case to imply that she would also be subjected to political revenge.

e.  The immigration officer did not take into consideration the evidence not in her previous claim, which is not fair.

f.  The Director had committed error for not taking into consideration of the same sex relationship as in Indonesia, Muslim do not tolerate homosexuality.

Discussion

20.  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).

21.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that she could not blame the Board or the Director.

22.  The grounds in paragraph 19 do not assist her application. Grounds (a), (b), (d), (e) are her bare assertions and opinions only. As to ground (c), it is a procedure under the Ordinance. As the applicant has already had screening interview by the immigration officer and this application is only a subsequent claim with additional materials, there is nothing amiss in this procedure without another screening interview. Ground (f) is not sustainable as the fact did not occur after determination of her previous claim. The applicant chose not to disclose it to the immigration officer in her previous claim. She cannot blame the immigration officer for not considering this issue in the previous claim.

23.  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.

24.  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

25.  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.

26.  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 Director 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.

27.  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.

28.  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.

29.  Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she wants to stay in Hong Kong as she has not solved her loan problem.

30.  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

31.  The applicant’s application is dismissed.

32.  RPO in terms of paragraph 30 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