ONG SIU SIN KEVIN v. DIRECTOR OF IMMIGRATION

HCAL 778/2023

[2024] HKCFI 1689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 778 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 counsel for 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 12 May 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his 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 54-year-old national of Singapore who arrived in Hong Kong on 13 October 2001 as a visitor, and upon subsequently marrying a Hong Kong resident he was allowed to remain under his wife’s dependent visa until 2008 when their marriage was dissolved by a divorce, and that he was subsequently arrested and convicted for fraud, and was sentenced to prison for 4 ½ years, and after his discharge from prison and was referred to the Immigration Department for deportation upon a removal order being issued against him on 27 August 2014, he then raised a non-refoulement claim on the basis that if he returned to Singapore he would be harmed or killed by his cousin who was said to be an Assistant Director of Prosecution for trying to expose his cousin for having stolen millions of dollars from his grandmother’s estate.

Previous Non-Refoulement Claim  

3.  As will be apparent below when I come to deal with the Applicant’s intended subsequent claim which is essentially based on the same set of primary facts of his previous claim but which he now claims to have new or newly available evidence to support his subsequent claim, it is relevant to first set out the following factual backgrounds of the Applicant’s case as recorded in the Director’s earlier decision which rejected his previous claim (see HB5/95 - 98).

4.  The Applicant was said to have come from a prominent and wealthy family in Singapore which owned substantial wealth and assets including equities in a company founded by his maternal grandparents and subsequently listed in the Singapore Stock Exchange, and that the Applicant himself had received tertiary education with a degree in quantity surveying in Singapore and a law degree in the UK, and upon returning to Singapore he had worked in quantity surveying, marketing, investment banking and internet solution provider.

5.  While in Singapore the Applicant was also interested in politics by participating in rallies and protests organized by the Workers’ Party and the Singapore Democratic Party against the ruling party People’s Action Party led by the Lee Kuan Yew Family, of which he had also frequently criticized on the internet and the social media.

6.  One of his main targets for criticism was his own cousin Christopher Ong (“Christopher”), then an assistant Director of Prosecutions whom he had accused of abusing his power in his office, and after he had discovered evidence that Christopher together with Christopher’s parents had stolen millions of dollars from the accounts of his deceased grandmother Madam Chua Hock Tay, and after making a report to the Corruption Practices Investigation Bureau, the Applicant was arrested by the Internal Security Department whom he suspected were at the instigation of Christopher in his official position, and for which the Applicant was detained for days during which he was interrogated and repeatedly tortured until he lost consciousness and was taken to hospital where he was found to have bone fractures all over his body.

7.  After his discharge from hospital and was released on bail, the Applicant was advised by his parents to leave the country to save his life, and so he reached a compromise with Christopher by handing over all the original incriminating evidence that he had collected to Christopher in return for his safe passage to leave Singapore, with a warning from Christopher never to return or else he would be killed, and so on 13 October 2001 the Applicant departed for Hong Kong where he subsequently met a local resident whom he married in 2004, and was allowed to remain in Hong Kong based on his wife’s dependent visa.

8.  In 2008 his dependent visa was terminated after his wife divorced him, and shortly thereafter he was arrested by police for fraud and was subsequently convicted and sentenced to prison for 4 ½ years, and upon his discharge from prison in 2014 and was referred to the Immigration Department for deportation to Singapore upon the issue of a removal order against him, the Applicant then raised his previous claim for non-refoulement protection, for which he completed a Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service (“DLS”), but after just one short and uncompleted screening interview before an immigration officer, he failed to attend any further interviews due to various alleged reasons, and in lieu thereof he subsequently provided some answers to a list of questions raised on his claim by the immigration officer.

Director’s Decision on Previous Claim    

9.  By a Notice of Decision dated 9 December 2015 and a Notice of Further Decision dated 18 November 2016 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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”) (HB5/89 - 113 & 132 - 142).

10.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found serious issues with his credibility due to his failure to provide those supporting documents which he claimed to have or able to obtain despite being given more than one year and that he was legally represented at all material times as well as his failure or refusal to answer many of the questions raised of his claim without good reasons or reasonable excuse or to attend the many scheduled and re-scheduled screening interviews before an immigration officer, and in the absence of any reliable independent evidence in support of his claim that there were no substantial grounds for believing that his claimed risk of harm upon his return to Singapore would materialize, while reliable and objective Country of Origin Information (“COI”) show that state or police protection as well as a fair, effective and transparent legal and judicial systems to ensure that due process legal representation and fair trials will be available to the Applicant if needed from any prosecutions that may be brought against him by Christopher or at Christopher’s instigation through abuse of power that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.

11.  As will be apparent below, it would be relevant to note in more details the various findings made by the Director in the decision of 9 December 2015 on the credibility of the Applicant’s previous claim, starting with what appear to be some very strong criticisms of the Applicant’s failure to provide those supporting documents that he had earlier promised to or to answer questions raised of his claim despite being repeatedly given time and opportunities to do so (HB5/98 – 100):

“(III) Supporting Documents

27. You had indicated in the NCF that you intended to submit the following supporting documents in support of your claim:-

i. Medical reports from Singapore General Hospital which verifying your injuries sustained;

ii. Medical reports from Glen Eagles Hospital which verifying your injuries sustained;

iii. Medical reports from Doctor Leslie Kwok;

iv. Documents from Estate of Madam Chua Hock Tay (deceased);

v. Birth Certificates of 1) Raymond Ong Eng Kong; 2) Ong Eng Yeow, Jeffrey; 3) Christopher Ong Siu Jin; 4) Ong Siu Sin Kevin;

vi. Proof of memberships of all the political parties you were affiliated to;

vii. Legal documents from Messrs. Baker Mackenzie, Wee Swee Teow & Co., and Wu Bih Li and Li regarding your company Mercury Solutions (being the Webmaster and administrator of the opposition parties website and internet marketing strategies);

viii. Sworn affirmations regarding your involvement in the parties that you are affiliated to and the action taken against you that have transpired;

ix. Independent political Analyst and strategist reports on the political situations as well as legal opinion on S.55 Internal Securities Act of Singapore; and

x. Documents from the estate of Mr Ong Tiang Guan, your deceased grandfather (Son of Ong Boon Tat), where Christopher Ong is trying to deprive you of your inheritance from your grandfather.

28. It is the fact that reasonable time and opportunities have been given to you to submit the supporting documents in support of your claim. It was first mentioned in your NCF that the aforesaid documents could be submitted 3 – 6 months after the return of your NCF (NCF was returned on 24 November 2014). Despite that you have been repeatedly reminded in our letters sent to you through the DLS to submit the supporting documents, you failed to submit those supporting documents before the commencement of the first interview being arranged with you on 27 may 2015 (i.e. 6 months from the date of the return of your NCF). When you were asked of the availability of those supporting documents in the interview on 27 May 2015, you indicated that the supporting documents could be provided within 6 to 10 weeks (QA 32 of the record of interview on 27 May 2015) and you were reminded that if you received any of the supporting documents, you should submit it to us at the first instance (QA 37 of the record of interview on 27 May 2015). By our letter of 25 August 2015 sent to DLS (i.e. nearly 3 months after the interview on 27 May 2015), we had requested you to provide the supporting documents to us before the commencement of the interview on 15 September 2015. By our letter of 15 September 2015 sent to DLS, we further requested you to provide the supporting documents to us on or before 29 September 2015. Nonetheless, as at 29 September 2015 (i.e. more than 10 weeks from 27 May 2015), we still had not received any supporting documents from you. Owing to your failure to proceed or attend the interviews being arranged for you and taking into consideration your health condition, by our letter of 15 October 2015, you were required to provide answers to the clarification questions in the form of Question Sheets. Albeit we had requested you to provide your answers to the Question Sheets and had given extensions of time to you twice, you still have not provided your answers to us or submitted any of the supporting documents within the prescribed timeframe in relation to your claim.

29. As of today, we still have not received your answers to our Question Sheets or any supporting documents that you intended to submit. We would like to point out that more than a year had lapsed since you had returned your NCF on 24 November 2014, we are of the view that ample time and opportunities have been given to you to submit the supporting documents or elaborate your claim. As such, we will proceed to determine your claim on the basis of all available information.” 

12.  The Director then went on to determine and reject the credibility of the Applicant’s claim as having been seriously damaged by those findings as follows (HB5/101 – 102):

“(A) Credibility

34. In your NCF dated 21 November 2014, you stated that you intended to submit list of supporting documents in relation to your claim in 3 – 6 months. Despite of our repeated reminders, you have not provided us any of the supporting documents before the commencement of the first interview arranged for you on 27 May 2015 without any explanation. At the interview with you on 27 May 2015, you were unable to produce any of the supporting documents and you explained that ‘it is agreed that six months have lapsed, but consideration must be given to the fact that documentation and material from twenty to fifteen years ago have to be retrieved from storage. At that point in time not everything was computerized like present. We are talking about physically retrieving documents and material that are kept in storage by government bodies etc.’ (A 29 of the record of interview) You also revealed that ‘Please be informed that partial documents from the estate of madam Chua Hock Tay (Deceased), my late grandmother, of which this claim stems from, will be available together with some medical records proving my injuries and being tortured, within six weeks at latest. As such it be requested that this interview be adjourned till then so that I can make full and proper use of this golden opportunity to explain my claim properly as well as address the points of contention there may be.’ (A 28 of the record of interview). You were reminded in the Interview that ‘if you received any supporting documents you should submit it to us at the first instance via the Duty Lawyer Service instead of giving those documents to us during the course of the interview.’ (Q 37 of the record of Interview). Nonetheless, up to present, albeit our repeated reminders to you, we have not received from you any of the supporting documents or reasonable explanation. Furthermore, despite our repeated request to provide answer to our question as simple as your political affiliation as claimed during the Interview, you insisted to reserve your answers until you got the supporting documents. (QA 21 & 22 of the record of Interview). Moreover, you refused to give your answers in details during the Interview, you mentioned that ‘I once again reserve my answers in detail until I receive the estate documents which would prove in detail my assertions. Again I must stress it is not in the interests of justice to conduct an in detail interview by the immigration department without the availability of those documents, that would support in detail my claim.’ (A 26 of the record of Interview). In fact, we had reminded you in the Interview that ‘Actually you could submit documents to support your claim at any stage so no worries about it. Besides, you could also make any clarifications to us at any time and it is not only restricted to this interview. I understand that you need to retrieve your supporting documents from Singapore, more than 6 months had lapsed since you submitted your non-refoulement claim form I think it is to you benefit to process your claim as soon as practicable.’ (Q 29 of the record of Interview). Nevertheless, you still refused to answer our questions and requested the adjournment of the interview until the supporting documents were available. During the Interview, you mentioned that few documents could be provided in six weeks and some of them would take approximately 8 to 10 weeks to provide. By now, more than 6 months had lapse since the Interview with you on 27 May 2015, nothing had been provided by you in support of your claim and there is no explanation from you regarding the unavailability of your supporting documents. Regarding our Question Sheets that we sent to you to answer on 15 October 2015, irrespective of our repeated reminders and extensions of time given, you still have not provided your answers to us.

35. Your failure, without reasonable excuse, to answer the questions put forth to you and to make a prompt and full disclosure of the documentary evidence as claimed has damaged your credibility.”    

Board’s Decision on Previous Claim

13.  The Applicant’s appeal against the Director’s decisions was also dismissed by the Board on 26 October 2017 for similar reasons after hearing him in oral evidence and submissions made by his lawyer from DLS, and upon finding his evidence as to the reasons for seeking non-refoulement protection in Hong Kong unconvincing and lacking in credibility, that his credibility was further undermined by his failure to raise such claim until nearly 13 years after his arrival in Hong Kong and only after a deportation order had been made against him, and that in any event relevant COI indicated that reasonable state protection in Singapore would be available to him with his fundamental rights protected by the law and that the authorities would take action against offenders of the law including senior public officials that his claim for non-refoulement protection failed on all the applicable grounds, whereupon the Board also confirmed both decisions of the Director (HB5/143 - 158).

14.  While it was questionable for the Board to criticize the Applicant for failing to raise his claim upon first arriving in Hong Kong in 2001 until almost 13 years later which the Board found to have further undermined his credibility, as it was not until 2014 when the removal order was issued against him when he would then face the risk of being harmed by Christopher upon being repatriated to Singapore that the Applicant had no cause or reason to raise his claim at any time earlier, and hence such criticism of the Board was in my view unjustified.

15.  However, even without any undermining factor, as I had found in my decision in refusing to grant leave to the Applicant to apply for judicial review of the Board’s decision, the Board was in my view entitled to reject the credibility of the Applicant’s claim which was based entirely on just his bare assertions without any evidence in support, as the Board so stated in its decision as follows (HB5/153 – 154):

“61. The entire case for the Claimant rests on bare assertions of the Claimant himself without any cogent evidence to support whatsoever. The Claimant himself is well aware of his duty to substantiate his claim by providing to the Director and to this Board all information relevant to the claim and making prompt (emphasis mine) and full disclosure of all material facts in support of the claim, including any document supporting those facts. He acknowledged as such during the screening interview of 27 May 2015 by saying “I clearly understand that under the laws of Hong Kong, I am under the duty to prove my claim.” (Hearing Bundle page 116, QA. 31)

62. Yet despite managing to have the screening interview adjourned in May 2015 in order to obtain documents from Singapore that supported his claim (see Hearing Bundle page 117 QA. 30,32), no evidence at all such as estate documents, medical reports or proof of political membership were forthcoming even at the hearing some eighteen months later on.

63. I do not accept the Claimant’s explanation that he has been unable to obtain relevant documents merely because without copies of his original passport or identity documents he has been unable to establish his identity.

64. Whilst it is understandable that some proof of identity be required, the fact of the matter is that the Claimant has at all times been legally represented by a most competent solicitor and I have no doubt that had a signed written consent from the Claimant been sent to the institutions concerned by his solicitor that some documents such as medical records could have been obtained. There is no evidence that this was ever done.” 

Application for Judicial Review of Board’s Decision on Previous Claim

16.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was as noted above refused by this Court on 11 December 2019 (HB5/159 - 164) upon finding none of the proposed grounds for his intended challenge reasonably arguable, that as noted above there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 33/2018 [2019] HKCFI 2481).

17.  The Applicant’s subsequent application for extension of time to appeal against the Court’s decision was also refused by this Court on 1 December 2020 (HKCFI 2896), and then dismissed by the Court of Appeal on 30 July 2021 (CAMP 250/2020 [2021] HKCA 1066).

18.  The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decision was also refused by the Court of Appeal on 7 January 2022 ([2022] HKCA 9), and finally dismissed by the Appeal Committee of the Court of Final Appeal on 21 September 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request to make Subsequent Claim

19.  Just some 2 months later on 30 November 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis of having obtained new evidence of his cousin Christopher and family becoming the greatest beneficiaries of his grandmother’s estate through criminal acts of theft that the Applicant would now face even greater risk of being harmed or killed by Christopher if refouled to Singapore.  

20.  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.”

21.  Accordingly, on 8 December 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he eventually did more than 5 months later via his lawyer from DLS by providing some documents after having been repeatedly granted extensions of time for him to do so, of which no doubt I will have more to say later in this decision.

Director’s Decision to Refuse the Applicant’s Request for Subsequent Claim

22.  By a Notice of Decision dated 12 May 2023 (“Decision”) 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 his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

Grounds for Judicial Review of Director’s Decision

23.  On 19 May 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s Decision, and put forward the following grounds as amended for his intended challenge:

   (1)   Failure to properly apply the relevant legal principles and/or to make sufficient inquiry and/or to give adequate reasons and/or to take into account relevant matters;

   (2)   Failure to apply the correct test for the making of a subsequent claim and/or to take into account relevant matters and/or to give reasonable weight to relevant matters.

24.  In support of these grounds Mr Francis Ngan of Counsel appeared for the Applicant with his Skeleton Arguments at the hearing of the leave application.

Discussions

25.  Before proceeding to consider whether these proposed grounds of the Applicant are reasonably arguable for leave to be granted to apply for judicial review of the Director’s Decision to refuse his Request to make a subsequent claim, it would be helpful to remind myself again of what was required of the Applicant under Section 37ZO (2) of the Ordinance, which is for him to provide 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.

26.  These requirements should however be read together with subsection (1) of Section 37ZO which stipulates that a person who has previously made a torture claim must not subsequently make another torture claim unless he is able to comply with those requirements under subsection (2) to the satisfaction of an immigration officer, clearly for the purpose of preventing abuses by claimants desirous of delaying their removal from Hong Kong by repeating their claims, and where the immigration officer is clearly given the power and discretions to filter out such abuses by holding the applicant to strict compliance of such requirements.    

27.  Henceforth in the present case, the first question to ask must be this: Has the Applicant provided sufficient evidence in writing to satisfy the immigration officer that there has been a significant change of circumstances since his previous claim was finally determined, as required by subsection (2)(a)?

28.  To answer this question, it would of course be relevant to look to the Director’s Decision to see exactly what evidence in writing had been provided by the Applicant, through his lawyer from DLS, in support of his Request to make his subsequent claim, starting with what the Applicant claimed to be the grounds of new circumstances in his letter of 22 November 2022 and recorded at [13] of the Director’s Decision as follows:

“(a) There is new and further information on the probate proceedings of the estate Madam Chua Hock Tay (deceased), your grandmother, which would increase you risk of harm in Singapore. By reason this information will show your cousin Christopher and his family are the greatest beneficiary of the estate because of his criminal act of theft, and it would be in his greatest interest to cover up his criminal wrong doing. It would also show that you are of greatest threat to him and his family, thereby giving him great motivation to do you harm and to abuse his position of power in Singapore to protect his family and himself;

(b)    There is new updated COI and/or legal precedent indicating that Singapore exposes you to risks of harm.”

29.  It is therefore clear that the basis of the Applicant’s intended subsequent claim is essentially the same as in his previous claim, hence it follows that the significant change of circumstances since his previous claim was determined that he was required to satisfy the immigration officer must be that there are new or additional evidence which were not available to him in his previous claim but are now available, and that when taken together with those material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success as stipulated by Section 37ZO (2) above, of which the Director went on to record in [14] of his Decision of what such evidence that the Applicant claimed to now have or would be able to obtain for his subsequent claim as follows (HB4/39, 46 – 47):

“In the letter of 11 January 2023, you stated that apart from the information you provided in your previous non-refoulement claim, you would like to supplement information as follows in order for the ImmD to consider your Request:-

(a) You have made the attempt to obtain your Singaporean passport at Consulate General of the Republic of Singapore on 4 January 2023. You have made an online application to the Immigration and Check Points Authority of Singapore for an application of a new Singaporean passport and identity card. You have been informed that you will receive SMS confirmation within 14 days;

(b) In late December 2022, you have contacted the lawyers handling the estate of your late grandmother in order to obtain documents relevant to your claim in Singapore i.e. probate proceedings of the estate of your deceased grandmother and the related documents. Those documents were previously unobtainable. With the possible provision of them, it constitutes a substantial change of circumstance for you to apply for subsequent claim. The bank statement will show that on the date of her death, all the money in her account were transferred to the accounts belonging to Christopher, his mother and sister illegally. The documents you wish to obtain will also show that Christopher, his mother and sister were selling the shares of Cycle and Carriage Ltd. Belonging to your grandmother illegally. You were informed by the Estate lawyers that it would take 21 to 30 days to retrieve the documents from storage;

(c) You have also recently found out that you are a beneficiary of your grandfather’s will. Although your grandfather died in 2013, the probate proceeds have not been completed. You have been informed by your aunt, Adelyn Ong, which the cash in the bank account have been transferred to the account of Christopher, his mother and sister, and the shares you held have been sold. You were also informed that you are a beneficiary of his will but you have not received anything and Adelyn Ong, who is the executor of the estate, has been warned by Christopher not to cause any trouble. It is also your understanding that Christopher is blocking access to documents including the bank accounts of your grandfather and those security brokerage documents. You are however informed that the Court in Singapore has ruled that your aunt should be provided with a full set of documents within thirty days and you will do your best to provide documents to the tribunals when you receive them. Thus, there is more motivation for Christopher to abuse his power to protect himself;

(d) Your father suffers from dementia and he lost the ability to communicate properly. Nonetheless, you are aware of the fact that Christopher is now a senior director of public prosecution with the Attorney-General’s Chambers of Singapore, an appointment of immense power over the police and prosecutions department [Document 1];

(e) You prove your relationship with Christopher by submitting a series of photographs [Document 2 to 3] and other documents [Document 4 to 5]. You had supplied the documents to your previous lawyers but failed to submit them to the ImmD;

(f)    You observed recently that Singapore’s prime minister has been taking measures to stifle free speech. It will undoubtedly induce the risk of persecution of citizens who are against the government. As Christopher is a senior civil servant in a position of power, he could definitely take action against you with his official capacity and the government would not take action to protect you. You further submit some news articles from Reuters [Document 6], Quartz [Document 7] and BBC [Document 8] concerning the estate of the late Lee Kuan Yew, showing that the brother of the present prime minister has fled from Singapore to Hong Kong in order to avoid persecution by the brother in relation to matters of his father’s estate. You also submit a news article from ABC dated 27 June 2016 [Document 9] relating to the abuse of power by the Singapore police.”    

30.  The Director then listed those documents which had actually been submitted by the Applicant in support of his Request as Documents 1 – 15 in [15] to [19] of the Decision (HB4/48 – 49), proceeded to consider and analyse them, and found all of them either irrelevant to the Applicant’s claim, or would not assist or advance his Request to make a subsequent claim as follows (HB4/49 – 51):

“20. All the available information/evidence have been carefully considered, it is noted that your fear of being harmed by your cousin Christopher and his cronies in your Request is the same one as in your previous claim (see paragraph 12 above). Your claimed threats and harm had been thoroughly considered in your previous claim which was not accepted as substantiated. Having said that, you have submitted some new supporting documents in your request. Relevant considerations are elaborated in the paragraphs below.

21. You submitted 15 documents (Documents 1 to 15) in support to your Request. They are taken into account when considering your request. Document 1 can only show that your cousin Christopher could be a public official in the Singapore, which is not in dispute. Document 2 to 3 are two photographs with various unknown women and children inside. However, it could not prove their identities or their relationships by simply looking at those photographs. For Document 4 to 5, you claimed that they are the obituary of Raymond Ong Eng Kong and Chua Hock Tay, Phyllis respectively. Setting aside the authenticity of the Documents 1 to 5, they are neither authoritative documents nor substantiated by any proven evidence. After all, they only contain information from the internet or in their private capacity instead of information from any official document(s) issued by any Singaporean authorities. These documents are considered to be irrelevant in any way to the risk of you claimed fear upon your return to your home country. Therefore, they cannot advance your request further.

22. As for Documents 6 to 9, and Documents 14 to 15, they are all news article which at most can reflect the general information of country condition of Singapore only. The assessment is that they are unable to show that you, will be personally subjected to any risk of serious harm or ill-treatment if you are returned to Singapore. While some of the news article or COI corroborate your assertion of unsatisfying human rights situation including controlling freedom of speech in the society and the abuse of power by the Singapore police, it appears that the COI does not mention any of your personal material information to substantiate your claims of harm or ill-treatment. It is considered that the existence of human rights abuse in a country does not of itself constitute a sufficient ground for determining that a particular person will be in danger of being subjected to harm or ill-treatment upon one’s return to that country, not to mention that the state protection exercised by the government of Singapore has been dealt with in your previous claims (see paragraph 12(d), (e), (p) and (q)). There is nothing in the context of the aforesaid COI to show or support that you will face a foreseeable, real and personal risk of serious harm or ill-treatment if returning to your home country. The news article/COI provided will not advance your Request further.

23. As for Documents 10 to 12 with the birth certificate and identity cards shown, they can at most show that you have a son in Hong Kong. Your relationship with your son in Hong Kong is thus not in dispute.  However, there is no information on how your family situation in Hong Kong would be relevant in any way to the risk of your claimed fear upon your return to Singapore. Yet, it is noted that you expressed your worry on the development of your son without fatherly love should you be repatriated to Singapore (see paragraph 16).  However, it is considered that there is no hindrance for you to return to your home country with your family and the place of settlement is a matter of choice by you and your family.  Therefore, the said Documents cannot advance your Request further. As for Document 13, by the content of the letter dated 16 April 2018, it at most could prove the progression of your previous judicial review of your case under reference HCAL 33/2018.  It also reiterated part of your previous case in the content of the letter regarding judicial review.  There is again no information on how your judicial review in Hong Kong under HCAL 33/2018 (which has been dismissed at CFA level in 2022) would be relevant to the risk of your claimed fear upon your return to Singapore. Therefore, the said Documents cannot advance your Request further.”     

31.  Having considered and determined all those documents submitted by the Applicant as either irrelevant to his claim or would not assist or advance his Request, the Director concluded that the Applicant had failed to provide sufficient evidence in writing satisfy the requirements under Section 37ZO (2) of the Ordinance, and refused to allow him to make a subsequent claim for the following reasons stated in the Decision (HB4/51 – 52):

“24. In this Request, as mentioned in paragraph 14(b), you or your duty lawyer intended to submit documents related to the probate proceedings in Singapore of the estate of your deceased grandmother. In December 2022, you were informed by your Estate lawyers in Singapore that it would take 21 to 30 days to retrieve those documents from storage in your home country. However, it is never received by the ImmD. It is worth to mention that the issue of submitting the same estate documents and other related documents had already been raised in your previous claim and been discussed in the TCAB Decision. The Board emphasized in the TCAB Decision that “no evidence at all such as estate documents, medical reports or proof of political membership were forthcoming even at the hearing some eighteen months later on (at that material time)”. The Board agreed with the Director that “it had given every possible opportunity to establish your claim and that it was you yourself who was unwilling to proceed with the screening interview on 27^th May 2015.” Taking into account more than five months have lapsed since your first letter of 30 November 2022 for subsequent claim, it is considered that sufficient time and reasonable opportunity have been given to you (and your duty lawyer) to submit information and evidence to support the Request and documents and COI has already been received. In the circumstances and in order to avoid further delay in the process of the Request, the ImmD has decided to proceed with the assessment of your Request on the basis of all the available information. Having said that, even if the estate document(s) is submitted, it can hardly advance the request any further as elaborated in the ensuring paragraphs.

25. Regarding your alleged fear of being harmed by your cousin Christopher as mentioned in paragraphs 14(b), you insisted that with the possible provision of the documents relevant to your probate proceedings of the estate of your deceased grandmother, it constitutes a substantial change of circumstances for you to apply for subsequent claim. However, even if assuming that your claimed case of probate proceedings exists, there is no new and significant basis in your request to indicate that your cousin Christopher will be capable of inflicting harm on you upon your return to Singapore. In any event, the Case Officer and the Board had already assessed in your previous claim that state protection remained a viable option to lower your perceived fear (see paragraph 12 (c), (d), (e) and (o)). Moreover, the fact remains that you had left Singapore for many years. After such a long lapse of time, it is highly unlikely that your enemy would still harbor a continuous intention to target you. There is also no new and reliable evidence whatsoever apart from your mere speculation that you will be targeted upon your return to Singapore. The Board was of the view that the dispute (if exist) between you and Christopher was purely private in nature and had nothing to do with the Singapore government or the authorities (see paragraphs 12(q)) and the authorities in Singapore did take action against offenders of the law despite the fact they may be very senior public officials (see paragraphs 12(p)). Given no new and substantiated evidence from your Request which could refute these important factors, it is considered that your current alleged risk of harm, if any, does not amount to a significant change of circumstances since your previous claim was finally determined.

26. In light of the above, it is not accepted that: there has been a significant change of circumstances since your previous claim was finally determined; and the change, if any, when taken together with the materials previously submitted in support of your previous claim, would give the subsequent claim a realistic prospect of success.  Your Request for making a subsequent claim under section 37ZO of the Immigration ordinance, Cap. 115, is therefore not made, i.e. the Director is not satisfied that you have complied with the requirements set out in section 37ZO(2) of the Immigration Ordinance, Cap. 115.”

32.  In summary, the Director in finding those documents submitted by the Applicant would not assist or advance his Request at all in that they did not amount to any significant change of circumstances since his previous claim was finally determined, nor would they, when taken together with the materials previously submitted in support of his previous claim, which is as noted above in fact none, give his subsequent claim any realistic prospect of success.      

33.  It is against these findings of the Director that Mr Ngan submits for the Applicant that the Director in refusing the Applicant’s Request to make a subsequent claim failed to apply the relevant legal principles when considering those documents submitted in support of his application and/or to make sufficient inquiry and/or to give adequate reasons in particular in respect of the new matters raised in the subsequent claim, that the Director in considering that the COI relied on by the Applicant as to abuse of power by the Singaporean government was of general situation and not specific to the Applicant’s case is wrong in principle, that in considering the Applicant’s subsequent claim that the Director applied the wrong test of a higher threshold instead of a lower one and was wrong to rely on or to place too much weight on findings made by the Board in the previous claim, and the Director failed to apply the same high standards of fairness in the consideration of the Applicant’s Request to make a subsequent claim as in the consideration of the claim itself (see Counsel’s Skeleton Arguments).

34.  To consider whether these complaints of the Applicant are reasonably arguable for his intended challenge, it is relevant to go back to that all-important question first raised in [27] above: Has the Applicant provided sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was finally determined?

35.  Having inspected those 15 Documents provided by the Applicant and contained in the Hearing Bundle (HB/6/186-212), and even leaving aside those copies photographs of small children which the Applicant, inappropriately in my view, expected the immigration officer to be able to identify him and Christopher as reliable evidence of their alleged relationship or of Christopher’s position as a public official in Singapore, of which the Director in fact did not take real issue in the consideration of the Request ([21] of Decision), I agree with the Director’s assessments of them as either irrelevant or that they would not assist or advance the Applicant’s case at all, and I do not find any error in such assessments

36.  As for the Applicant’s claim of his recent discovery of being a beneficiary in the estate of his grandfather who died in 2013 but that he had been informed by his aunt Adelyn Ong as the executor of the grandfather’s will that money in his grandfather’s bank accounts had also been transferred to Christopher and his family, thereby giving Christopher more motivation to abuse his power to protect himself, presumably from any claim or action to be taken by or on behalf of the Applicant as a beneficiary which the Applicant claims to also amount to a significant change of circumstances, the fact is that the Applicant in his NCF for his previous claim submitted to the Director on 21 November 2014 had already raised such matter then, and that he also indicated that there were documents he would later submit to support his previous claim including, inter alia, those from “the Estate of Mr Ong Tiang Guan, my deceased grandfather (Son of Ong Boon Tat), where Christopher Ong is trying to deprive me of my inheritance from my grandfather” (see HB5/78), and which had then been referred to and considered by the Director in the Applicant’s previous claim (HB5/99). As such, and in the absence of any such documentary evidence such as those from his grandfather’s estate which the Applicant had proposed to submit as far back as in 2014, the Director was in my view entitled to disregard it as not any significant change of circumstances since the determination of his previous claim.

37.  As for those COI submitted by the Applicant which he considered as evidence of recent political persecutions conducted by the Singaporean government against persons including even prominent politicians, in my view the Director was also entitled to find them even if true not relevant to the Applicant’s claim or to assist or advance his case, until and unless the Applicant was able to first establish, by way of sufficient evidence in writing, the primary facts of his subsequent claim, i.e. threats or risk of threats directed against him by Christopher in the abuse of power as a high level public official in Singapore or by the Singaporean authorities at the instigation of Christopher, but of which the Director was correct to have found none whatsoever. 

38.  Mr Ngai for the Applicant contends that the Director in doing so failed to apply high standards of fairness to the fullest extent in the consideration of the Applicant’s subsequent claim, as a matter of refugee law that it is wrong for the Director to require that such supporting documents be authoritative or corroborated, as the UNHCR in its Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection suggests that cases in which an applicant can provide evidence of all his statements is the exception rather than the rule, and that the Director should not have so strictly applied Section 37ZO (3) of the Ordinance in taking into account of the finding of credibility or fact made by the Board in the Applicant’s previous claim, as the test is whether or not the subsequent claim would enjoy a realistic prospect of success.

39.  While there is no question in my mind that high standards of fairness should be applied through the entire process of the determination of a non-refoulement claim, a request by a claimant to make a subsequent claim after his previous claim had been finally determined is still subject to the requirements under Section 37ZO of the Ordinance for the reasons already noted above in this decision at [26], and to prevent abuses by the claimant to avoid or delay the removal process, the immigration officer is clearly entitled to take into account any finding of credibility or fact made by the Director or the Board in relation to his previous claim under subsection (3), and in applying high standards of fairness to determine whether the claimant can or cannot provide evidence in support of his request to make a subsequent claim, and notwithstanding that it is an exception rather than the rule that one actually can, each case must still depend on its own facts and circumstances.

40.  In the present case, the Applicant on his own case in both his previous claim and his intended subsequent claim is a highly educated man having completed tertiary educations in both Singapore and UK in quantity surveying and law respectively, worked in quantity surveying, marketing, investment banking and internet solution provider, and was from a wealthy and prominent family in Singapore, and is clearly far from being one of those typical claimants fleeing from some backward or poor country thousands of miles away and arriving with the barest of necessities and without even any personal documents as described in the UNHCR Handbook and referred to by his Counsel Mr Ngan, and which were also duly noted by the Director in both his previous claim and the intended subsequent claim.

41.  More significantly, not only was the Applicant in his previous claim criticized by both the Director and the Board for failing to provide not even a single piece of documentary evidence in support of his bare assertions of threats from Christopher, he was also criticized for his various behaviour as designed to conceal information and/or mislead or obstruct or delay the handling or determination of his claim which the Director and the Board were entitled to take into account under Section 37ZD of the Ordinance in rejecting the credibility of his previous claim, and which this Court also found to be justified when refusing his leave application to apply for judicial review (see [20] – [21] of the Court’s decision at HB5/163).

42.  For the present purpose it is not necessary to revisit those criticisms from my previous decision, however it would be pertinent to refer to the judgment of the Court of Appeal in refusing to extend time to the Applicant’s late intended appeal upon rejecting his explanation of not being able to obtain the necessary documentary proof for his non-refoulement claim due to his alleged inability to replace his Singaporean passport, an explanation which he had earlier also made to the Board, as Kwan VP in giving judgment of the Court criticized the Applicant for failing to adduce any evidence of even any attempts to obtain such documents or any explanation for not doing so at paragraph 17 (HB5/174):

“The ground pertaining to the impracticality of obtaining the necessary documentary evidence due to the lack of passport is not supported by any credible evidence. After being criticized by the Board for not obtaining some documents such as medical records through his solicitors and criticized by the judge back in December 2019 for not even producing any evidence of any attempts by him or his lawyer such as requesting letters to various authorities or government departments of Singapore, the applicant has still not adduced any evidence of any such attempts but only stated that he would certainly write to the various departments to obtain documentary proof via his solicitors to prove to the court that he is unable to obtain such documentary evidence should an extension of time to appeal be given to him. He has not provided any explanation why he could not have done so before or at the time of taking out the present application. This ground is unmeritorious.”

43.  Such failures of the Applicant to provide any reliable evidence to corroborate his previous claim, which were repeated some 8 years down the road when he made his Request to make a subsequent claim, are all the more inexplicable when he in fact on 16 April 2018 did obtain a written advice from his previous counsel Mr Philip Ross as to the prospects of success for a judicial review of the Board’s decision, and which the Applicant has produced to the Director as part of the documents submitted in support of his Request for subsequent claim and listed as Document 13 in the Director’s Decision, in which Mr Ross pointed out to him that there was a lack of any corroboration to his claim, and advised that he should obtain some objective evidence in support of his claim as follows:

“What is lacking in the Applicant’s claim and judicial review is a lack of any corroboration to the claims be made. On appeal the Applicant was disbelieved Qing Sin Sin Kevin v Director of Immigration USM 2786/15/12/115/591 at paras 68, 81.

The Applicant should be able to obtain some objective evidence in support of his claim:

1. that Christopher Ong Siu Jin is the Applicant’s cousin and was at the material time an Assistant Director of Prosecutions (para 17). In any event has he retired now or does he still occupy a Government post?

2. that his injuries following the mistreatment by Christopher really happened (paras 22, 23). Can Applicant obtain medical records to support his injuries?

3. that the Applicant was a political activist? (para 15)

Can he obtain documentary proof of the membership or post he held as organizer for Workers Party or Singapore Democratic Party?

4. did he keep or can he now obtain proof that Christopher and his parents had stolen 15 million Singapore dollars from Christopher’s grandmother’s bank account (para 18), despite handing over this evidence to Christopher when he left Singapore in 2001 (paras 22 – 25)?

5. I note that the screening interview was adjourned on 27 May 2015, to obtain further documents from Singapore (para 5). What documents were obtained?

…

If further evidence can be obtained, the Applicant would need to support the new evidence by an explanation as to why it was not produced at the appeal hearing.”    

44.  More than 4 years later, and after having exhausted all his legal challenges against the Board’s decision as regard his previous claim, the Applicant tried to raise a subsequent claim based essentially on the same set of primary facts as his previous claim, and notwithstanding all the criticisms magnified at each level of such legal processes of his failures to produce any relevant evidence to corroborate his previous claim, and despite the advice of his previous counsel Mr Ross and a further 5 months granted to him by the Director to obtain such documents which he had promised through his lawyer as evidenced in the many correspondences with the Director (see HB/6/228 – 253), the Applicant still failed to do so for his subsequent claim.      

45.  In fact, one needs look no further than the one from his lawyer dated 1 March 2023 (HB6/239) in which the Applicant informed the Director that he had just received from his Singapore lawyers 16 boxes of documents in relation to the probate proceedings of the estate of his deceased grandmother referred to earlier in his finalized statement for subsequent claim dated 11 January 2023, and which has clearly been the cornerstone of his claim and as far as supporting documentary evidence is concerned, whether for his previous claim or subsequent one, and for which the Applicant again repeatedly sought and was given further periods of time to enable him to inspect, examine and sort out those 16 boxes of documents for production to the Director, but by the time of the Director’s Decision more than 2 months later on 12 May 2024, not one single piece of those 16 boxes of documents had been produced, and when this matter was raised by the Court at the hearing of the Applicant’s application, Mr Ngan confirmed that none has been produced as the Applicant found them all irrelevant.

46.  Not only do I find such statement incredible given the amount of documents that could be found in those 16 boxes, that in fact the entire process clearly looks suspiciously like further attempts by the Applicant to mislead and delay the handling or determination of his claims, and all were designed to delay his removal from Hong Kong, as the Director had so found in his previous claim when such behaviors of the Applicant were taken into account as damaging his credibility under Section 37ZD of the Ordinance, and in the consideration of the Applicant’s Request to make his subsequent claim based on the same primary facts, the Director was in the circumstances rightfully entitled to also take into account those findings of credibility or facts made in relation to his previous claim under Section 37ZO (3) of the Ordinance.     

47.  In the premises, and for the reasons given, I do not find either of the Applicant’s proposed grounds reasonably arguable for his intended challenge, 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 subsequent claim, I accordingly refuse his leave application.

Restricted Proceedings Order

48.  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 21 September 2022, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based essentially on the same set of primary facts as before in his previous claim, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

49.  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.

…”

50.  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.”

51.  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.  

52.  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]).

53.  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]).    

54.  In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, but to which Mr Ngan in his second submissions dated 25 April 2024 argues that the Applicant’s present application is not ‘obviously untenable or manifestly groundless as to be utterly hopeless’, nor was it a ‘calculated attempt 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’ (see Further Submissions dated 25 April 2024).

55.  My short answer to that is that for all the reasons given above, I am convinced that the Applicant’s present application is exactly as such, and unless a RPO is to be made against him, the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

56.  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 his 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 his 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 

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

58.  A RPO in terms of paragraph 56 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