GURUNG SOYTA v. DIRECTOR OF IMMIGRATION

HCAL 264/2022

[2022] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 264 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 oral submissions bythe 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 21 March 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 901 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 applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against her since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert her non-refoulement claim on the same facts of the case, thereby abusing the legal process.

The procedural history

3.  The applicant is an illegal immigrant from India by overstaying. She raised non-refoulement claim with the Immigration Department by written representation dated 5 January 2016 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

4.  Her claim was rejected by the Director by a Notice of Decision dated 29 November 2016.

5.  She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 14 May 2018 (the “Board’s Decision”), the Board dismissed her appeal.

6.  She applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 15 January 2019 (the “Court’s Order”).

7.  Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 17 June 2019.

8.  Her notice of motion for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 18 December 2019.

9.  Her appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed on 21 September 2021.

10.  She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter of 20 October 2021.

11.  By the Director’s Decision, the Director refused her application.

The subsequent claim application

12.  The factual basis of her claim is that if refouled, she will be harmed or killed by her husband because she had converted to Christianity and by the Hindus because she is a Christian.

13.  The Director found that her claim was not substantiated. He found that from her experience, the risk of her being harmed or killed by her husband or by the Hindus was low as shown by the fact that she had returned to her husband after she was beaten by him. That she would be harmed or killed by the Hindus was hearsay from somebody else only. The Immigration officer also found that state protection was available to her and internal relocation was a reasonable option open to her.

14.  The Board, on the same reasons, affirmed the Director’s Decision.

15.  Under section 37ZO of the Ordinance, she has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

16.  In support of her subsequent claim, the applicant said that the following new circumstances would be significant for consideration of her subsequent claim:

a.  there would be a National Register of Citizens (“NRC”), which requires her to prove her citizenship based on her ancestry in India or by certain set of documents that she does not have access because her parents had passed away and her existing documents such as passport and her secondary school transfer certificates are not recognized by the government;

b.  her divorced husband has been harassing her sister in India; and

c.  the Hindu organizations BJP and RSS members would harm her as they are getting more aggressive.

17.  The immigration officer had considered the above circumstances and agrees that it may amount to significant change of circumstances as the applicant may be rendered stateless. However, having considered the country of origin information and the fact that this new policy is not yet practiced nationwide but is only being practiced in Assam and that the applicant has not attempted to apply to the government departments to obtain the relevant documents for the purpose of NRC, he therefore found that the applicant failed to prove her case on this issue. As to her divorced husband’s hostile attitude to her sister, the immigration officer considers that it is only hearsay evidence. In any event, this reason does not support her subsequent claim as she may obtain state protection. As to the Hindu oppression, the immigration officer considers that this is only her speculation and he did not accept it. He therefore refused to accept that those grounds, coupled with her previous claim, would give reasonable prospect to her subsequent claim.

The application for leave to apply for judicial review application

18.  The applicant has filed an affirmation in support of her application and submitted the following grounds.

a.  Having accepted that there may be a change of circumstances since her previous claim that may constitute significant change of circumstances, which would support her subsequent claim, the immigration was in error in deciding that she could easily find relevant documents to prove her nationality. She had attempted to apply to the Indian Consulate in Hong Kong for renewal of her passport but was informed that her passport would only be renewed after she had withdrawn her non-refoulement claim. She was told that she had to apply for her birth certificate in person to the relevant municipality or district. The Director should not ask her to return to India without any evidence that she will be able to claim her Indian nationality.

b.  The Director should have referred her case to the Torture Claims Appeal Board to be reheard and reassessed. The Board may make a different ruling in her favour.

19.  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).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant was asked if she considered the Director was wrong in making his decision. She said that she was not saying that his Decision was wrong.

21.  For the first ground above, it shows that the Indian government may be able to assist her to obtain the identification documents for the NRC requirements. The burden is on her to prove that she is stateless for the Director’s consideration. Obviously, she is unable to do so. The Director may refuse to accept her claim that she will be stateless if she returns to India. For the second ground, the law does not provide that the Director may refer her subsequent claim to the Board if the Director rejects the application. The Director simply has no power to do so. The Ordinance provides no avenue for appeal from the Director’s refusal of a subsequent claim to the Board. The applicant may only apply for leave to have judicial review of the Director’s Decision, which is her present application.

22.  The applicant has therefore raised no valid ground to challenge the Director’s Decision.

23.  The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  Since there is no realistic chance of success in her intended judicial review of the Director’s Decision, I dismiss her application.

The RPO

25.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against her. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

26.  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.

27.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as her intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

28.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against her. The applicant has been explained the proposed restricted proceedings order before this hearing. Before me, she said she had nothing more to say.

29.  I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings on the same facts of the previous claim for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, and any appeal, including this Order, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to Deputy 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 this Court or 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 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 this Court or 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 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

30.  The applicant’s application is dismissed.

31.  RPO in terms of paragraph 29 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