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HCAL 1502/2024
[2024] HKCFI 2984
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1502 OF 2024
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BETWEEN
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Dao Trong Truong |
1st Applicant |
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Nguyen Thi Luyen |
2nd Applicant |
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Dao Thu Trang |
3rd Applicant |
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and |
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Director of Immigration |
Putative Respondent |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
16 October 2024 |
| Date of Judgment: |
12 November 2024 |
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JUDGMENT
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THE APPLICATION
1. The 1st applicant is the father, the 2nd applicant is the mother and the 3rd applicant, aged 24, is their daughter This is their joint application for leave to apply for judicial review of the Notice of Decision dated 31 July 2024 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 2064 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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. The applicants appeared before the Court on 16 October 2024. The 1st applicant acted as the guardian ad litem for the 3rd applicant. The applicants admitted that they rely on the same facts in their previous claim in support of their subsequent claim application”).
The procedural history
4. The applicants are illegal immigrants. They lodged their claims for non-refoulement to the Director on the basis that, if refouled, they would be harmed or killed by the public officers in Vietnam and a money lender for the unpaid debts and they fear that the 3rd applicant would be sold to China.
5. Their non-refoulement claims are on the applicable grounds of Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk[1].
6. Their claims on Torture risk, BOR 3 risk and Persecution risk were rejected by the Director by a Notice of Decision dated 30 September 2015 (“the Director’s Notice of Decision”) and their claims on BOR 2 risk was rejected by the Director’s Notice of Further Decision dated 5 December 2016. They are called (“the Director’s Notices of Decision”)
7. They appealed the Director’s Notices of Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 4 May 2017 (the “Board’s Decision”), the Board dismissed their appeal.
8. The 1st applicant applied for extension of time to appeal the Court’s Order to the Court of Appeal. The Court of the First Instance refused his application. He sought leave to the Court of Appeal for appeal out of time and his application is still pending.
9. The 2nd and the 3rd applicants applied for extension of time to apply for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 26 July 2022 (“the Court’s Order”). They pursued the matter to the Court of Final Appeal and their application for leave to appeal to the Court of Final Appeal is still pending.
10. They applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 11 March 2024.
11. By the Director’s Decision, the Director refused their application.
The subsequent claim application
12. In their previous claim, the Director rejected their joint application for the reason that their claim was not substantiated.
13. The applicants appealed the Director’s Decisions to the Board. The Board dismissed their appeal for the reasons that their evidence was not acceptable and furthermore, state protection would be available to them and internal relocation was viable.
14. Under section 37 ZO of the Ordinance, the applicants have 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.
15. In support of their subsequent claim, the duty lawyer acting for them submitted further materials and a statement (“the Statement”) to the immigration officer.
16. Having considered the evidence, the immigration officer found that:
(1) The fear of being harmed or killed by the Money Lender and the Public Officers as asserted in the Statement remained unchanged, which had been duly considered in their previous claim as not substantiated [11];
(2) the information of plain clothed police officers causing death to Chi as shown by the death certificate was hearsay evidence [12]; and
(3) the 3rd applicant would be sold to China was only a speculation [13].
17. Therefore, the immigration officer considered that the additional evidence and materials did not constitute any significant change of circumstances since their previous claim was finally determined, which, when taken together with their previous claim, would not give the subsequent claim a realistic prospect of success. On this basis, the immigration officer rejected their subsequent claim application.
The application for leave to apply for judicial review
18. The applicants have filed Form 86 on 3 September 2024 for judicial review of the Director’s Decision.
19. The applicants have filed an affirmation in support of their application, in which they have raised the grounds below.
(1) The Director has underestimated the injury and cruel treatment the family are under and the imminent danger if they return to Vietnam.
(2) The Director has ignored the change of circumstances that one of their close family members was killed by their enemies in the course of interrogatories of their whereabouts. The matter was reported, but up to date there is no further information. This shows the danger if the family return to Vietnam.
(3) The Director has not recognized that because of the above, state protection will not be available to the family if they return.
(4) It is unfair to reject the hearsay evidence because they can only obtain the information from their family members in Vietnam and there is no other means to obtain the information.
(5) The Director has overestimated the influence of the NGOs. The officials bribed their way to have such positions. Their works are only good on paper as they are not free from corruption.
(6) The Director was misled by the media about the effectiveness of the NGOs. The government of Vietnam prohibits freedom of expression.
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 1st applicant admitted that they rely upon the same facts in their previous claim in support of their subsequent claim application. But the 1st applicant submitted that they cannot return to Vietnam as they will be arrested and tortured.
22. The grounds under paragraph 19 do not assist the applicants. Ground a, b, c, e, and f are bare assertions, comments or opinions without any evidence in support. As to ground d, the Board was entitled to treat the information from their family members in Vietnam as hearsay evidence, which can be accepted, but they are subject to the weight the Board gave them The Board has to take an over-view of the matter and decide whether such hearsay evidence could be accepted as the fact of the case. The Court will not interfere with the Board’s discretion in the evaluation of the evidence in accordance with the law.
23. There is no realistic prospect of success in their subsequent claim. I dismiss their application for leave to apply for judicial review of the Director’s Decision.
The RPO
24. The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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.
25. 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.
26. In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.
27. For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against them. The 1st applicant has been explained the proposed restricted proceedings order before this hearing.
28. Upon being requested to show cause why the Court should not make the RPO against them, the 1st applicant said they cannot return to Vietnam as they will be arrested and tortured. This reason is not valid to challenge the Director’s Decision.
29. Having considered the 1st applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicants 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. The reference to the Applicant will cover the 1st applicant, the 2nd applicant and the 3rd applicant, or anyone of them in this case.
(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 Applicants 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 Court.
DISPOSITION
1. The applicants’ joint application is dismissed.
2. RPO in terms of paragraph 29 be made against the applicants.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicants appeared in person.
[1] Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”); torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”)
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