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HCAL 1694/2023
[2024] HKCFI 587
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1694 of 2023
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BETWEEN
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Lavado Mary Jane Mabao |
1st Applicant |
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Mehmood Wajid Mehmood |
2nd Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
1. Leave to apply for Judicial Review be refused; and
2. A Restricted Proceedings Order (RPO) be made against the applicants.
Observations for the Applicants:
THE APPLICATION
1. The 1st applicant, aged 39 is the mother of the 2nd applicant, her son, aged 9. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 7 September 2023 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 2697 of 2018 (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 applicants to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against them since there is evidence to show that if unrestricted, the applicants may take out further proceedings to assert their non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. Since the second applicant is a minor, the Court has, by letter dated 22 September 2023, advised the 1st applicant to apply for legal aid at the Legal Aid Department or obtain private legal assistance. For this purpose, the matter was adjourned for 3 months. The letter advised the 1st applicant that if she fails to obtain legal assistance, the court will proceed to deal with the leave application.
4. The applicants appeared before the Court on 8 January 2024. The 1st applicant informed the Court that her application for legal aid had been rejected by the Director of Legal Aid Department. The Court proceeded to hear her application.
5. The 1st applicant confirmed that the factual basis of her son relied upon her own facts. She further admitted that she relied upon the same reasons in support of her pervious claim for the subsequent claim application.
The procedural history
6. The 1st applicant is a national of the Philippines. She first came to Hong Kong as a domestic helper in 2012. She applied for a visitor’s visa after termination of her employment. Her application was acceded to by the Director. However, she overstayed and surrendered to the Immigration Department on 27 June 2014. She gave birth to the applicant son. She lodged a non-refoulement claim with the Immigration Department by way of two significations dated 23 July 2014 on behalf of herself and her son.
7. Their non-refoulement claim are on the applicable grounds of the Torture risk, the BOR 2 risk, the BOR 3 risk and the Persecution risk[1], collectively called (“their claims”)
8. Their claims were rejected by the Director by a Notice of Decision dated 21 February 2017 (“the Director’s Decision”).
9. They appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 20 February 2018 (the “Board’s Decision”), the Board dismissed their appeal.
10. They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 25 May 2021 (“the Court’s Order”).
11. They appealed against the Court’s Order and the Court of Appeal dismissed their application on 27 April 2022.
12. Their Notice of Motion to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 15 May 2023.
13. They applied to the Director for making a subsequent claim for non-refoulement protection by letters respectively dated 19 June 2023 and 28 June 2023.
14. By the Director’s Decision, the Director refused their application.
The subsequent claim application
15. Their joint application is based on the fact that if refouled, the 1st applicant and her son would be disowned and even killed by her family members because they would not accept her relationship with her husband, who is a Muslim.
16. The Director rejected their joint application for the reason that their claim was not substantiated.
17. The applicants appealed the Director’s Decisions to the Board. The Board dismissed their appeal, having taken into consideration the inconsistency of her evidence in relation to her statement given to the immigration officer and to the Board and came to the conclusion that her family was not taking adverse attitude to her relation with her husband as she claimed and that they would not harm or take hostile actions against her or her son if they returned to the Philippines. The applicant and her son would not have any risk of harm should they return to the Philippines.
18. Under section 37 ZO of the Ordinance, the applicants have 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.
19. In support of their subsequent claim, the 1st applicant submitted a letter dated 19 June 2023 and some other letters to the Director for his consideration.
20. The Director found that those reasons were the same in her previous claim and they had be rejected.
21. The Director therefore found that the additional information, when considered together with her previous claim, would not give them reasonable prospect of success in their subsequent claim and dismissed their application.
The application for leave to apply for judicial review
22. The applicants have filed Form 86 on 20 September 2023 for judicial review of the Director’s Decision.
23. The 1st applicant has filed an affirmation in support of their application, in which she did not raise any specific ground.
DISCUSSION
24. 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).
25. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant said that she understood the Director’s Decision. She asked the Court to consider giving her more time to stay in Hong Kong so that she may solve her problems and her son to finish his education.
26. From the Court’s Order, it is clear that the Board had not separately considered the 2nd applicant’s specific issues. The Court had dealt with this issue. It took the view that there was no child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the 2nd applicant. The Court dismissed the applicants’ application for leave to apply for judicial review of the Board’s Decision, following the decision of the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021:
“33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non‑compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”
27. The 1st applicant had admitted that she is relying on the same facts in the previous claim in support of this application for subsequent claim.
28. There is no realistic prospect of success in their subsequent claim. I dismiss their application for leave to apply for judicial review of the Director’s Decision.
The RPO
29. The Director’s findings show that the applicants are attempting to re-litigate the facts in support of their previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicants from abusing its process by making a RPO and the extended order against them. 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.
30. 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.
31. In my view, the fact that the applicants are entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as their intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.
32. For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against them. The 1st applicant has been explained the proposed restricted proceedings order before this hearing.
33. Upon being requested to show cause why the Court should not make the RPO against them, the 1st applicant said she wants more time in Hong Kong for her to solve her problems and for her son to finish his education in Hong Kong. These reasons are not valid to challenge the Director’s Decision.
34. Having considered the 1st applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicants 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. The reference to the Applicant will cover the 1st applicant and the other applicants or anyone of them in this case.
(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 Applicants 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 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 Judge.
(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
35. The applicants’ joint application is dismissed.
36. RPO in terms of paragraph 34 be made against the applicants.
Dated the 7th day of March 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicants
on 7/3/2024
Lavado Mary Jane Mabao
and
Mehmood Wajid Mehmood
Applicants’ ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/3/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (27773) & (27774) in ImmD RA 7/37/C (formerly RBCZ/3001452/14 & RBCZ/11543/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”); torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and 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”)
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