DHANA KARKI v. DIRECTOR OF IMMIGRATION

HCAL 88/2023

[2023] HKCFI 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 88 of 2023

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 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:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 23 November 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.  The Applicant is a 47-year-old national of Nepal who arrived in Hong Kong on 30 September 2004 as a visitor with permission to remain as such up to 7 October 2004 when she did not depart and instead overstayed, and almost 3 years later on 29 August 2007 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to Nepal she would be harmed or killed by some local supporters of the then militia Nepal Communist Party (Maoist) (“Maoists”) for refusing to join their party or to pay donations to them for their insurgency against the Nepali government, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 25 July 2017 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her 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 decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by those Maoists upon her return to Nepal due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 situation in Nepal has changed and improved dramatically since the civil war and military insurgency ended in 2006 that in additional to state protection that reasonable internal relocation alternatives would be available within Nepal with a large population of 29 million people spread across a vast territory of more than 143,000 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 the country away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate the Applicant.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 17 August 2018 after hearing her in evidence and submissions and upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 14 July 2020 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 1939/2018 [2020] HKCFI 229).

7.  The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 15 March 2021 (CACV 295/2020 [2021] HKCA 268).

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 17 December 2021 ([2021] HKCA 1908), and then by the Appeal Committee of the Court of Final Appeal on 15 July 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484A.

Request To Make Subsequent Claim

9.  Less than 2 ½ months later on 3 October 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she has been informed by her family and friends in her home country that those Maoists are still looking for her everywhere in Nepal and have even made false charges against her that she still fears of being harmed or 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 19 October 2022 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”).

12.  By a Notice of Decision dated 23 November 2022 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 her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in her previous claim of the dramatic changes occurred in Nepal since the peace agreement reached with the Maoists in 2006 when they ended their violent insurgency and civil war that there are no objective indications of any further threats from the Maoists and the absence of any evidence of any false charges allegedly made against the Applicant or of any risk of harm from the Nepali police or authorities which might arise from such false charges.

13.  On 19 January 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation filed on the same day she put forward the following grounds for her intended challenge:

(1)  That the Director erred in determining that there is no realistic prospect of success in her subsequent claim by placing an unnecessarily high threshold in such determination;

(2)  That the Director did not take into account her unique situation fairly or carefully in the determination of her request;

(3)  That the Director’s decision in not allowing her to make a subsequent claim is erroneous and biased in failing to rely on any facts of her case and was purely targeting her for a situation that the Director has not experienced first-hand;

(4)  That the determination made by the Director is nothing but biased observations designed to reject her claim and lacks completeness and evidence;

(5)  That the Director merely repeated what was decided by the Appeal Board against her claim;

(6)  That the Director erred in finding that state protection would be available to her when clearly her fear is being sought by the police over the false charges which state protection would not be available to her who would then face all sorts of harm in Nepali prison;

(7)  That the immigration officer refused to accept her case where she had already given information and evidence which were not included in her previous claim but the officer failed to accept them and did not consider it as a subsequent claim which is illogical and unreasonable;

(8)  That the Director’s decision was biased and was made based on wrong case management power by merely trying to dispose of her case as quickly as possible without carefully considering all the available information and evidence;

(9)  That the Director failed to conduct any screening interview for her request to make a subsequent claim just based on the information available which is a flaw of justice; and

(10)  That it is procedurally unfair that she was not allowed to appeal to the Board against the Director’s refusal to allow her to make a subsequent claim which is contrary to the principles of fairness and justice.

14.  Most of these grounds are however just some vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaborations as to how they apply to her case, or in what way was the Director biased against her or failed to properly consider all her information and evidence submitted by her in support of her request, or how did the Director or the immigration officer err in the decision in refusing to allow her to make a subsequent claim where the factual basis even on her own case is essentially the same as in her previous claim when there were correct and unchallenged findings by both the Director and the Board of the availability of state protection and internal relocation to negate any risk arising therefrom. As such and for the reasons given I do not find any of them reasonably arguable for her intended challenge.

15.  As for her complaint of not being given any screening interview for her request to make a subsequent claim, it is well established that there is no absolute right to an oral hearing, or for that matter a screening interview, as the ultimate question is one of fairness, and while an opportunity to make worthwhile or effective representations is an important requirement of fairness in most but not all situations, it does not follow that there must be an oral hearing or screening interview being held before a decision is to be made: ST v Betty Kwan [2014] 4 HKLRD 277.

16.  Given the statutory requirement for the Applicant in her request to make a subsequent claim to provide sufficient evidence in writing to satisfy an immigration officer of those terms and conditions under Section 37ZO (2) of the Immigration Ordinance as noted above, and that on the basis of such evidence and information as provided the immigration officer was entitled to take into account of the findings of credibility and facts made by both the Director and the Board in relation to the Applicant’s previous claim, it is my judgment that the immigration officer in the exercise of his discretion was not at fault in not holding any screening interview for the Applicant’s request to make a subsequent claim which is essentially and factually based on her previous claim, I do not find this ground of the Applicant reasonably arguable for her intended challenge either.

17.  As for her last complaint of not being allowed to first appeal to the Board against the Director’s refusal to allow her to make a subsequent claim, it is clearly a legislative purpose and intent not to include such right to appeal to the Board under Section 37ZR of the Ordinance, and as such there is simply no legal basis in this complaint of the Applicant.

18.  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 her leave application.

Restricted Proceedings Order

19.  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 15 July 2022, but that the Applicant is still trying to re-litigate her case by making this subsequent claim based on essentially the same facts and basis as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

20.  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.

…”

21.  Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

22.  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.

23.  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]).

24.  In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).

25.  In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against her, to which she was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

26.  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 or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made 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 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 her 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 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 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 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)  No appeal shall lie from a decision of the Judge granting or refusing leave under 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; and

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

Disposition

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

28.  A RPO in terms of paragraph 26 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