OTUNU PATTALE MULACHARIGE NILUKA K.J. v. DIRECTOR OF IMMIGRATION

HCAL 668/2022

[2022] HKCFI 3092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 668 of 2020

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 27 June 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 2877 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.

The procedural history

3.  The applicant is an illegal immigrant from Sri Lanka for staying in Hong Kong without permission. She came to Hong Kong as a domestic worker on 9 July 2012. Her employment contract was terminated prematurely. She did not depart. She was arrested by police for overstaying and other crimes She raised non-refoulement claim with the Immigration Department by written representation received by the Immigration Department on 9 July 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. 

4.  Her claim on Torture, BOR 3 risk and Persecution risk was rejected by the Director by a Notice of Decision dated 23 August 2016. Her claim on BOR 2 risk was rejected by the Director’s Notice of Further Decision dated 7 July 2017. The Director’s Notice of Decision and Notice of Further Decision are called (“the Director’s Decisions”)

5.  She appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 3 January 2018 (the “Board’s Decision”), the Board rejected her appeal.

6.  She applied for leave for judicial review of the Board’s Decision, which was late and the application was dismissed by the Court by its Order dated 14 May 2020 (the “Court’s Order”).

7.  She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 10 June 2021.

8.  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 21 July 2021.

9.  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 3 March 2022.

10.  She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 19 April 2022.

11.  By the Director’s Decision, the Director refused her application.

The subsequent claim application

12.  The factual basis of her previous claim is that if she is refouled, she will be harmed, killed or sexually assaulted by Mervyn Silva (“Silva”) and his men (the “enemies”) and she has to face the stigma of being a single mother.

13.  The Director found that her claim was not substantiated. He found that there was no evidence to show that her enemies intended to harm or kill her; that she did not report the case to police and there was no evidence that the state was involved and state protection would be available to her and that internal relocation was an option open to her. She appealed to the Board.

14.  The Board agreed with the Director. The Board also found that there was no evidence to show that it was her enemies or their subordinates, who had raped her.

15.  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 realistic prospect of success.

16.  In support of her subsequent claim, she said that from the information from her family from Sri Lanka, her enemies are still looking for her and Silva will not spare her because she will damage his reputation if she returns to Sri Lanka as she alleged his bodyguard had raped her. She cannot relocate because she has to register with the grame sevaka regarding her ID number, her name and biographical details. She had relocated before and her enemies were able to locate her. The state will not provide her with protection. She had also submitted 4 documents in support of her subsequent claim.

17.  The Director considered that her enemies remain the same and all other issues had been considered in the previous claim and were rejected. The information from her family is only hearsay evidence, which cannot be verified. Relocation issue had been considered by the Director and the Board in her previous claim.

18.  The Director does not accept that those are significant change of circumstances. Such information, coupled with the previous claim, would not give the subsequent claim a realistic prospect of success of her subsequent claim.

The application for leave to apply for judicial review application

19.  The applicant has filed an affirmation in support of her application. She said that she is not satisfied with the Director’s Decision. She had submitted documentary proof. But the Director did not accept her evidence.

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 said she understood the Director’s reasons rejecting her subsequent claim. She said she considered that the Director was wrong. However, she also accepted that the Director had to comply with the law.

22.  There is no valid ground from the applicant to challenge the Director’s Decision.

23.  It is quite clear that the applicant is re-litigating her previous claim in her subsequent claim application.

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 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.

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 has to obey the law.

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 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 Judge.

(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