|
HCAL 91/2025
[2025] HKCFI 851
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 91 OF 2025
_____________
|
BETWEEN
|
| |
Manh Thi Mai |
Applicant |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Respondent |
_____________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
17 February 2025 |
| Date of Judgment: |
25 March 2025 |
_____________
JUDGMENT
_____________
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 December 2024 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1296 of 2019 (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.
3. The applicant appeared before the Court on 17 February 2025 and admitted that she relied upon the same reasons in her previous claim in support of her subsequent claim application.
The procedural history
4. The applicant, aged 60, is a national of Vietnam. She entered Hong Kong illegally on 16 December 2015 via a fishing boat in Shenzhen and was arrested by the police on 21 December 2015. On 24 December 2015, the applicant made a non-refoulement claim by written representation to the Director of Immigration.
5. Her claim was rejected by the Director for the reason that her claim was not substantiated.
6. She appealed to the Torture Claims Appeal Board/Non-refoulement Claims (“the Board”). Having considered the evidence, the Board rejected the facts of her claim, so there was no evidence in support any of the applicable risks[1]. The Board therefore dismissed her appeal.
7. The applicant then applied to the Court of the First Instance for leave to judicial review the Board’s Decision. The Court of the First Instance dismissed her application on 4 November 2024.
8. By letter dated 4 September 2024, the applicant applied for subsequent claim under section ZO of the Ordinance.
9. By the Director’s Decision, the Director refused her application.
The subsequent claim application
10. 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.
11. The applicant has submitted links about the current situation of the creditors killing debtors in Vietnam and news articles of similar nature to the immigration officer. Having considered the materials, the immigration officer found:
“11. … It is noted that your current fear is still related to your private dispute with your creditor and such same fear had been submitted and thoroughly considered in your previous claim which was not accepted as substantiated …”
12. The immigration officer therefore found that the applicant failed to satisfy those condition under section 37ZO of the Ordinance and dismissed her application for subsequent claim.
The application for leave to apply for judicial review application
13. The applicant filed Form 86 on 8 January 2025 for leave to apply for judicial review of the Director’s Decision.
14. In her affidavit in support of her application, the applicant raised the grounds to challenge the Director’s Decision. In summary, she said that the Director had not consider BOR 2; that he had not considered state acquiescence; that he had not taken into account her personal background and he had relied on the country of origin information against her application without giving due weight to that in her favour; that he had asked her to answer questions that she was not in a position to offer any response; and finally, he had not given due weight to her argument.
Discussion
15. 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).
16. 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 reason ]
17. For the reasons given by the immigration officer, the immigration officer took the view that the applicant failed to satisfy the conditions in support of her application for subsequent claim.
18. The grounds under paragraph 14 are the applicant’s bare assertions or her opinions without any evidence in support. They are not valid to challenge the Director’s Decision.
19. I find that there is no realistic prospect of success in the applicant’s subsequent claim. I dismiss her application for leave to apply for judicial review of the Director’s Decision.
The RPO
20. 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.
21. 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.
22. 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.
23. 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 admitted that she relied on the same fear of her creditor in her previous claim in support of her subsequent claim application.
24. The applicant has been explained the proposed restricted proceedings order before this hearing. Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.
25. 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
26. The applicant’s application is dismissed.
27. RPO in terms of paragraph 25 be made against the applicant.
| |
(K.W. Lung)
Deputy High Court Judge
|
The applicant appeared in person.
[1] The applicable risks are:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(3) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(4) risk of persecution by 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”).
|