PHAM THI TINH XUAN v. DIRECTOR OF IMMIGRATION

HCAL 1305/2024

[2024] HKCFI 2549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1305 OF 2024

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BETWEEN

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JUDGMENT

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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 29 July 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2779 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”). The Director’s Decision is in Chinese. However, the applicant’s affirmation is in English. My decisions are in English for the applicant’s convenience.

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 him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

3.  The applicant appeared before the Court on 11 September 2024 and admitted that she relied on the same reasons of her previous claim in support of her subsequent claim application.

The procedural history

4.  The applicant is a national of Vietnam, aged 62. She entered Hong Kong illegally and was arrested on 5 August 2014. On 15 February 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and a triad headed by Dao Minh Tuan (“Dao”) because of the unpaid debt owed by her husband.

5.  She raised her non-refoulement claim on the grounds of all applicable risks^[1]

6.  Her claim was rejected by the Director for the reason that her claim was not substantiated.

7.  She appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed her appeal. The Board found that the applicant’s evidence was not reliable. The Board further found that the state was not involved, state protection would be available and internal relocation was viable if she returned to Vietnam.

8.  She applied to the Court of the First Instance for leave to apply for judicial review of the Board’s Decision. The Court of the First Instance dismissed her application on 23 March 2022. She asked for extension of time to appeal the Court’s decision. The Court refused her application.

9.  She applied to the Court of Appeal for extension of time to appeal against the Court of the First Instance’s decision. The Court of Appeal dismissed her application. She asked for leave to appeal to the Court of Final Appeal. The Court of Appeal refused her application. She made her application for leave to appeal to the Court of Final Appeal and her application is still pending.

10.  By letter dated 12 February 2020, the applicant applied for subsequent claim under section ZO of the Ordinance. On 15 May 2020, she withdrew her application. On 5 February 2024, she made for application for subsequent claim again to the Director.

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

The subsequent claim application

12.  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.

13.  The applicant has submitted a statement to the immigration officer through her duty lawyer. In gist, the applicant says she does not have any premises for accommodation as her house has been sold by her creditor. Her son has left the family too and is nowhere to be contacted. She has no money to return to Vietnam and she has no money to repay her creditor. If she returns to Vietnam, she will be pressed to repay or to sell dangerous drug for the creditor. Her life will also be in danger.

14.  The immigration officer considered that those issued raised had been considered in her previous claim as her enemies and the causes are the same. Therefore, the immigration officer did not accept that there had been a significant change of circumstances since her previous claim was finally determined and such change, if any, when taken together with the materials previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success. The immigration officer also took the view that state protection will be available and internal relocation is viable if she returns to Vietnam. The Director therefore dismissed her application.

The application for leave to apply for judicial review application

15.  The applicant filed Form 86 dated 7 August 2024 for leave to apply for judicial review of the Director’s Decision.

16.  In her affirmation in support of her application, the applicant said that the Director had underestimated the injuries and cruel treatment that she may suffer if she returns to Vietnam. She will be exposed to imminent danger. She therefore considers that her claim should meet the requirement under BOR 2 and BOR 3 risks.

Discussion

17.  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).

18.  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 relied on the same reasons in her previous claim in support of her subsequent claim.

19.  Her reasons under paragraph 16 are only her bare assertions or personal opinions without any evidence in support. There is no valid reason to challenge the Director’s Decision.

20.  I find that 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

21.  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.

22.  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 Direcctor 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.

23.  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.

24.  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.

25.  Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.

26.  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

27.  The applicant’s application is dismissed.

28.  RPO in terms of paragraph 26 be made against the applicant.