WAHYUNI v. DIRECTOR OF IMMIGRATION

HCAL 442/2021

[2021] HKCFI 1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 442 OF 2021

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DECISION

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APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

1.  This is an application for leave to apply for judicial review of the decision (“the Decision”)  of the Director of Immigration (“the Director”)  communicated to the Applicant by a letter dated 19 October 2020 refusing to permit her to make a subsequent claim for non-refoulement protection under the Director’s unified screening mechanism.

2.  The Applicant is an Indonesian national who came to Hong Kong as a visitor on 30 April 2013, and has overstayed here since 8 May 2013.  She was arrested by the Police some 3 years later on 6 July 2016, and lodged a non-refoulement claim in August 2016.  The non-refoulement claim was based on an allegation that she would be harmed or killed by a creditor in Indonesia should she return to Indonesia because she was unable to repay a loan.

(1)  The Applicant’s non-refoulement claim on all applicable grounds was rejected by the Director on 19 December 2016.

(2)  The Applicant’s appeal or petition against the Director’s rejection of her non-refoulement claim was dismissed by the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  on 8 December 2017.

(3)  The Applicant’s application for leave to apply for judicial review of the Board’s decision was dismissed by Deputy High Court Judge Josiah Lam on 5 October 2018 (HCAL 194/2018, [2018] HKCFI 2135).

(4)  The Applicant’s appeal against the Deputy Judge’s decision was dismissed by the Court of Appeal on 4 March 2019 (CACV 517/2018, [2019] HKCA 250).

(5)  The Applicant’s application for leave to appeal against the Court of Appeal’s decision was dismissed by the Court of Appeal on 24 May 2019 ([2019] HKCA 568), and by the Appeal Committee of the Court of Final Appeal under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A, on 4 May 2020 (FAMV 171/2019).

3.  By a letter to the Immigration Department dated 18 June 2020, the Applicant requested to make a subsequent claim (“the Request”). On 19 October 2020, the Director refused the Request, on the basis that it was not accepted that there had been a significant change of circumstances since the Applicant’s previous claim was finally determined and, in any event, such change (if any), when taken together with the materials previously submitted in support of her previous claim, would not give the subsequent claim a realistic prospect of success.

4.  On 29 March 2021, the Applicant applied for leave to apply for judicial review of the Decision.  The Applicant’s intended grounds of judicial review are set out in her affirmation filed on 29 March 2021, in which the Applicant complained that:

(1)  She was not given a chance to be screened by the Director in respect of her subsequent claim.

(2)  She had no opportunity to lodge any appeal to the Board against the Decision.

(3)  She was not legally represented in the present proceedings, and had no legal advice to assist her in the preparation of the application and submissions.

(4)  She was a genuine non-refoulement claimant who faced dangerous problems, harassment and torture in Indonesia.

5.  It is plain that the intended grounds of judicial review raised by the Applicant are not reasonably arguable, and the intended application for judicial review has no realistic prospect of success. In respect of the 4 grounds mentioned above:

(1)  The Request was considered by the Director in accordance with the established procedures.  The Director’s consideration of the Request was a form of screening, which did not have to take any particular form.  There was no legal duty on the part of the Director to interview the Applicant, or conduct an oral hearing of the Request.

(2)  There is no law which confers on the Applicant a right of appeal to the Board against the Decision.

(3)  The fact that the Applicant has no legal representation in the present proceedings does not affect the legality or propriety of the Decision, and is not a ground of judicial review of the Decision.

(4)  Lastly, whether the Applicant is a genuine non-refoulement claimant is not a matter for fresh determination by the court in an application for judicial review.  In an application for judicial review, the court is not concerned with the underlying merits of the relevant decision, but only with issues of legality, rationality and procedural propriety of the decision.

6.  For the above reasons, the application for leave to apply for judicial review is dismissed.

RESTRICTED PROCEEDINGS ORDER

7.  The Applicant’s non-refoulement claim has already been finally and conclusively determined in previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 4 May 2020.

8.  In this court’s recent decision in Etik Iswanti v Torture Claim Appeal Board [2021] HKCFI 1589, the court considered the relevant principles for making an order under s 27 of the High Court Ordinance, Cap 4 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.

9.  Apart from s 27 of the High Court Ordinance, the court also has an inherent jurisdiction, which it can exercise on its own motion, to make a restricted proceedings order (“RPO”)  to prevent similar abuses of the court’s process by non-refoulement claimants.  In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, this jurisdiction was invoked to prohibit a litigant from commencing any further new legal proceedings in respect of the same claim or subject matter as in his previous unsuccessful proceedings without leave of the court.  In Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679, J Lam J (as he then was)  further held that a RPO is not confined to preventing re-litigation, but can cover subject matters which had not previously been litigated, and also public law proceedings.

10.  The underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process.  The categories of abuse of process are never closed.  In Etik Iswanti, at §35, this court held that repeated actions evidencing a calculated attempt by a defendant 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 an order being made under s 27 of the High Court Ordinance.  Similar considerations are applicable in relation to the court’s exercise of its inherent jurisdiction to make a RPO against a non-refoulement claimant who seeks repeatedly to re-litigate his or her non-refoulement claim.

11.  In the present case, I consider it to be clear that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against her, she will likely continue to do so, having regard to the following matters:

(1)  Her applications in HCAL 194/2018, CACV 517/2018 and FAMV 171/2019, as well as the present application, are all obviously untenable or manifestly groundless as to be utterly hopeless.

(2)  The applications all relate to the same subject matter, namely, the rejection of her non-refoulement claim based on an allegation that, were she to return to Indonesia, she will be at risk of harm by a creditor.

(3)  The present application manifests a refusal by the Applicant to accept the unfavourable outcome of the rejection of her non-refoulement claim, even though the same has been finally and conclusively determined by the Appeal Committee of the Court of Final Appeal in FAMV 171/2019.

(4)  The Applicant’s repeated applications are also evidence of an intention on her part to delay the outcome of the Court of First Instance’s judgment in HCAL 194/2018.

12.  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 any non-refoulement claim of the Applicant in the High Court, without leave 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 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 her 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 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)  This order shall cease to have effect at the end of 5 years from the date of this order.

(11)  A copy of this Order shall be sent to the Registrar of the High Court.

13.  Lastly, I make no order as to the costs of the Applicant’s application for leave to apply for judicial review, or the restricted proceedings order herein.