ALAPEE AZADI BEGUM AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 1373/2022

[2023] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1373 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the applicants.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st and the 2^nd applicants are mother and daughter. This is their joint application for leave to apply for judicial review of the Notice of the Decision dated 13 October 2022 of the Director of Immigration (“the Director’s Decision”), by which the Director rejected their application for subsequent claim to their previous claim of HCA 2721 of 2018 (“the previous claim”).

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.  The 1^st applicant and the 2^nd applicant appeared before the Court on 19 April 2023. This hearing was adjourned from 27 February 2023 for the reason that the applicants had applied for legal aid. At the hearing, the 1^st applicant informed this Court that they still had not received the Director of Legal Aid (“DLA”)’s reply yet. In view that there is no information as to when the result of the DLA will be available and that there is no merit in the applicants’ application, this Court proceeded with the hearing.

4.  The 1^st applicant submitted the Amended Form 86, which, according to the 1^st applicant, was prepared by the Justice Centre, a non-government organization, to the Court for approval. The Court granted leave to the applicants to amend their Form 86 as per the Amended Form 86 submitted. This case is therefore assessed under the Amended Form 86.

The applicants and their previous claim

5.  The 1^st applicant is a citizen of Bangladesh. She came to Hong Kong as a domestic helper on 8 December 2012. She gave birth to her daughter, the 2^nd applicant. Her employment contract was terminated. She overstayed. She surrendered to the Immigration Department on 20 October 2015. She raised non-refoulement claim with the Immigration Department by written representation dated 7 January 2016.

6.  The reason for her application is that if refouled, she and her daughter would be in danger due to the threats from her brother-in-law, Nasir Uddin (“Nasir”). Her husband worked in Hong Kong. He sent money to Nasir. He told her to obtain money from Nasir. However, when she asked for money from him, Nasir was unhappy. She lived in the in-law family together with Nasir and his wife. She was badly treated by them. Sometimes, she was slapped on her face by the wives of her brother-in-law. Her husband obtained a working visa for her to come to Hong Kong. Details of her story are set out in paragraph 7 of the Director’s Decision in the previous claim.

The procedural history

7.  In the previous claim, the Director considered their application in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(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 under RC”).

8.  By Notice of Decision dated 31 January 2018, the Director rejected their claim for the reason that their claim was not substantiated. He found that the level of risk of herself and her daughter being harmed by Nasir if they returned to Bangladesh was assessed to be low; that Nasir and his wife showed no real intention of harming her; that her conduct was inconsistent with that of a person in fear for life; that state protection would be available to her and that internal relocation was an option open to her.

9.  The applicant appealed to the Board. She attended a hearing on 18 June 2019. At the hearing, she withdrew her appeal and also her daughter’s appeal on the reason that it was safe for them to return to Bangladesh. The Board, having considered that she had made the decision of withdrawing her and her daughter’s appeal of her own free will, knowing the consequences of her decision, approved her application. The Board had also confirmed the Director’s Notice of Decision.

10.  The 1^st applicant then filed her application for leave to apply for judicial review of the Board’s Decision. In the application, the 1^st applicant did not specify any specific grounds in support of her application.

11.  The Court, by its Order dated 16 July 2021 (“the Court’s Order”) refused their application, relying upon the Court of Appeal’s decision in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019:

“41. … …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

12.  On 30 September 2021, the 1^st applicant applied for extension of time to appeal against the Court’s Order. The application was refused by the Court of the First Instance.

13.  By a summons taken out on 4 November 2021, the 1^st applicant applied to the Court of Appeal for an extension of time to appeal against the Court’s Order. The summons was dismissed by the Court of Appeal on 1 March 2022.

14.  The 1^st applicant’s Notice of Motion dated 12 April 2022 for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Final Appeal on 12 May 2022.

15.  By written representation of 15 August 2022, the applicants jointly wrote to the Immigration Department to make a subsequent claim and their application was dismissed by the Director’s Decision.

The subsequent claim application

16.  Under section 37ZO 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.

17.  For their application for their subsequent claim the applicants had submitted their written representations, in which they reiterated their previous claims and claimed that there had been a significant change of circumstances since their previous claims were finally determined. Such change of circumstances includes the significant change of political environment since the Awami League (the “AL”) came into power in 2009 and their lives were put at risk of being victims of violence for the 1^st applicant’s political affiliation.

18.  The applicants have also submitted additional information to say that sometime in 2019, the 1^st applicant’s brother-in-law had promised not to cause trouble upon her return to Bangladesh. However, he reneged on his promise and threatened that he would kill her and her daughter if they returned to Bangladesh.

19.  The 1^st applicant further said that she did not write the letter of withdrawal submitted to the Board and she did not know who wrote the letter, which was not written in Bengali language.

20.  She further submitted that her brother-in-law would utilize his power to cause people to rape her and her daughter and would kill her daughter in order to stop her from inheriting her husband’s properties; that internal relocation is not viable; and that there is no protection from the local authorities.

21.  Having considered the evidence, the immigration officer found that there was no evidence to show that Nasir had the intention of harming her upon her return to Bangladesh; that the state was not involved and that the properties were being held in the name of the 1^st applicant’s husband and there was no reason to kill the 2^nd applicant.

22.  The immigration office does not accept that there is any change of circumstances since their previous claims were finally determined. The immigration officer does not accept that the change of political circumstances causes any personal risk to the applicants and there is no evidence to show that this is the case. He further finds that there is no evidence to show that state protection will not be available to them.

23.  Insofar as the 2^nd applicant’s case is concerned, the immigration officer found that state protection is available to her and there are government and non-government agencies providing support to women and children in need as set out in the Director’s Notice of Decision in the previous claim. With the assistance of the government and the non-government organizations, it is believed that the 1^st applicant and the 2^nd applicant can start a new life in their home country if they return to Bangladesh.

24.  Insofar as the letter of withdrawal not being written by the 1^st applicant, the 1^st applicant did not raise this issue in her application before the Court of the First Instance in her application for judicial review of the Board’s Decision. Neither did she raise it before the Court of Appeal when she appealed the decision of the Court of the First Instance to the Court of Appeal. In paragraph 14 of the judgment of the Court of Appeal[1], the Court of Appeal said:

“14. In her 3-page written submission filed on 18 November 2021, the Applicant repeated the factual basis of her non-refoulement claim and stated that she did not want to return to Bangladesh.”

25.  The Director found that the applicants had failed to submit additional materials, which when considered together with the applicant’s previous clam, would give them a reasonable chance of success for their subsequent claim. The Director therefore dismissed the applicants’ subsequent claim application.

Application for leave to apply for judicial review

26.  In the amended Form 86, the applicants have raised the following grounds:

(1)  the Director erred in law by failing to conduct a child-specific assessment of the risk of harm; and

(2)  the Director breached the duty of joint endeavour by failing to enquire into country conditions and properly consider the COI submitted.

DISCUSSION

27.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. 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).

28.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that the 2^nd applicant’s case depends on the facts of her case; that her enemies are still in Bangladesh and she does not want to return to Bangladesh.

29.  Ground (1) complains that the Director had failed to conduct a child-specific assessment of the risk of harm in that he did not take into consideration of the young age of 2^nd applicant and that she is a child of the 1^st applicant, who is affiliated to BNP; that the 2^nd applicant is vulnerable to rape or gender-based violence; that the 2^nd applicant has to leave Hong Kong, a place where she has been growing up, to Bangladesh where she has no experience; that state protection would not be available to her because of corruption of the administration, which is reluctant to prosecute the offenders as they are biased.

30.  It is clear that the Director and the Board had considered the 2^nd applicant’s case separately, identifying the issues relating to the 2^nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971. See paragraph 23, supra. Those risks mentioned above refer to the general conditions in Bangladesh as there is no evidence to show that the 2^nd applicant is subjected to the risks personally. The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 held:

“29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be “personally at risk”. …”

31.  Ground (2) complains that the Director had failed to consider the COI submitted properly in that he had failed to consider the updated COI submitted by the applicants, in which it is said that the Bangladeshi government fail to provide protection for rape victims. The Director simply brushed aside this issue by saying that state protection is available and those risks are not personal cases or experiences to the 2^nd applicant. In accordance with the Court of Appeal decisions above, the Director was correct to approach the issues as he had done in this case. The applicants have failed to establish a case for the 2^nd applicant. This ground fails too.

32.  The applicants have raised no valid ground to challenge the Director’s Decision.

33.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review of the Director’s Decision.

The RPO

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

35.  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.

36.  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.

37.  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. Upon my enquiry of what comments the applicants had on the intended RPO, the 1^st applicant said that she understands the proposed order and that she will not re-litigate the matter if she and the 2^nd applicant are allowed to stay in Hong Kong.

38.  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” shall mean the 1^st applicant and/or the 2^nd applicant, either jointly or severally:

(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 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 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 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

39.  I shall treat the 2^nd applicant’s application without legal representation before this Court as an irregularity under Order 2 of the RHC without rendering these proceedings a nullity.

40.  The applicants’ application is dismissed.

41.  RPO in terms of paragraph 38 be made against the applicants, jointly or severally.

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