KAMRUNNAHAR MST v. DIRECTOR OF IMMIGRATION

HCAL 1200/2021

[2021] HKCFI 2876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1200 of 2021

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 3 August 2021 (“the Director’s Decision”) refusing her subsequent claim of HCAL 1722 of 2018 (the “original 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.  After the hearing, the Court received a notice from the Legal Aid Department informing it that the applicant had applied for legal aid. Under section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91, the matter should be adjourned for 42 days unless the Court orders otherwise.  I decide that the statutory stay should be lifted for the reasons that the applicant did not inform this Court and that she only applied for legal aid on 14 September 2021 near the hearing.  There is no reason for her delay in making the application.  She seems to be taking advantage of the legal aid application to delay the matter.  Also, I have considered the merits of her application.  I find that there is no merit in her application.  See The China State Bank Ltd v Wong Chun Ying trading as Wing Fung Hong Company HCA 10825/1999, Hon Waung J. in Chambers, 6 April 2000 and White Book Vol 2 of 2021 M1/15/1, Leader Crown Ltd v Herbert Tsoi & Partners (unrep.) HCA 3038/2003, [2005] HKEC 869 by J Chu :

“… In any event, there is no apparent justification for the very late application for legal aid. It is not an unjustified view to regard the application as an attempt to gain an advantage through the statutory stay such that if, contrary to my view, section 15(4) does apply, it will be appropriate to exercise my discretion to lift the statutory stay.”

The procedural history

4.  The applicant is an illegal immigrant from Bangladesh. She raised non-refoulement claim with the Immigration Department by written representation on 29 November 2016 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 24 November 2017.

6.  She appealed to the Torture Claims Appeal Board (“the Board”).  By its Decision dated 10 August 2018 (“the Board’s Decision”), the Board rejected her appeal.

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 20 June 2019 (“the Court’s Order”).

8.  She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 30 October 2019.

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 18 December 2019.

10.  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 8 April 2021.

11.  Before the Court of Final Appeal delivered its decision, she applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 1 April 2021.

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

The subsequent claim application

13.  The factual basis of her claim is that if she is refouled, she will be harmed or killed by her ex-husband.

14.  The Director found that her claim was not substantiated. He found that there was no evidence for believing that she would be harmed or killed by her ex-husband upon her return to Bangladesh; that reasonable state protection was available to her and that internal relocation was an option open to her.

15.  The Board agreed with the Director.  The Board also found that there was no evidence to support that there was a real risk that she would be harmed or killed if she returned to Bangladesh.

16.  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 realistic prospect of success.

17.  She relied upon the information from her family that her ex-husband was still imposing threats upon her family members.

18.  The Director rejected her grounds in support of her subsequent claim for the reason that the information was hearsay evidence from her family, which could not be tested. The Director does not accept that those are significant change of circumstances as her threats are the same from her ex-husband in her original claim.  Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

19.  The applicant has filed an affirmation in support of her application.  She enclosed the Director’s Decision with her affirmation without setting out specific grounds in support of her application.

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, CA. §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 did not know what to say.

22.  Before me, the applicant said she had married a Hong Kong resident and is applying for residency in Hong Kong.

23.  It is quite clear that the applicant is re-litigating her original claim in her subsequent claim application. According to the Director, the incidents after the determination of the original claim are the continuation of the facts in the original claim.   I agree.

24.  The fact that she is applying for residency in Hong Kong on the ground that she had married a Hong Kong resident will not affect her subsequent claim because it is a different application to be determined by the Director.  She has raised no valid ground to challenge the Director’s Decision.

25.  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.

26.  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

27.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her original 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.

28.  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.

29.  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.

30.  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.

31.  Upon being requested to show cause why the Court should not make the RPO against her, the applicant repeated the same facts as in paragraph 22 above.

32.  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, without leave 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 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 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 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)  This order shall cease to have effect at the end of 5 years from the date of this order.

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

DISPOSITION

33.  The applicant’s application is dismissed.

34.  RPO in terms of paragraph 32 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