ATUKUNDA GRACE FLAVIA v. DIRECTOR OF IMMIGRATION

CAMP 104/2024, [2024] HKCA 1125

On appeal from [2024] HKCFI 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 104 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1709 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

The application

1.  This is an application for leave to appeal to the Court of Final Appeal from an order made by Kwan VP on 3 September 2024 striking out the applicant’s application for leave to appeal against the decision of Deputy High Court Judge K W Lung dated 31 May 2024. By the judge’s decision, the applicant was refused leave to make a fresh application under a restricted proceedings order (“RPO”).

Background

2.  The procedural history concerning the applicant’s original non-refoulement claim is set out in an earlier decision of the judge of 15 March 2022[1], and will not be repeated in detail. The applicant is an illegal immigrant from Uganda. The Director of Immigration (“the Director”) rejected her non-refoulement claim in August 2016 and July 2017. Her appeal to the Torture Claims Appeal Board was unsuccessful and she failed in her attempts to seek leave to apply for judicial review when her Notice of Motion for leave to appeal the Court of Appeal’s decision was dismissed on 18 May 2021. She applied to the Director to make a subsequent claim for non-refoulement protection on 24 May 2021.

3.  By the earlier decision of 15 March 2022, the judge dismissed her application for leave to bring judicial review against the Director’s decision dated 26 October 2021 refusing her subsequent claim of HCAL 336 of 2018 under section 37ZO of the Immigration Ordinance (Cap 115).

4.  Since there was evidence to show that, if unrestricted, the applicant might take out further proceedings to assert her non-refoulement claim on the same facts and thereby abusing the legal process, she was given an opportunity to show cause at the hearing before the judge on 8 February 2022 as to why the court should not make an RPO against her.

5.  After hearing the applicant, the judge issued an RPO on 15 March 2022 prohibiting her 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 the RPO, without leave of the Court of First Instance[2].

6.  On 11 May 2023, the Director refused the applicant’s second request for making a subsequent claim.

7.  On 15 January 2024, she applied for leave to file a Form 86 to seek leave to bring judicial review against the Director’s refusal of her second request for subsequent claim. The application was refused by the judge on 5 March 2024[3].

8.  On 31 May 2024, the judge dismissed the applicant’s application for leave to appeal to the Court of Appeal against the decision of 5 March 2024[4].

9.  On 14 June 2024, the applicant filed a summons with the Court of Appeal for leave to appeal against the judge’s decision of 31 May 2024. The summons was struck out by Kwan VP on 3 September 2024 as the judge’s decision refusing to grant leave to appeal is final: Siti Khotimah v Director of Immigration [2022] 2 HKLRD 54 at §44.

10.  Upon the directions of the Registrar of Civil Appeals on 4 October 2024, the applicant and the Director have lodged their respective written submissions on whether the present application seeking leave to appeal to the Court of Final Appeal should be struck out.

11.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine this application on paper without an oral hearing.

Intended grounds of appeal and question of great general or public importance

12.  The applicant’s intended grounds of appeal are as follows:

(1)  The Court of Appeal failed to consider the procedural impropriety of the decision of the judge dated 5 March 2024 depriving the applicant of her right to a fair hearing and to make full representation in applying to make a fresh application for judicial review under the RPO;

(2)  The Court of Appeal failed to consider the substantive merits of the applicant’s application for judicial review, which is not an abuse of process and distinguishable from other RPO cases.

13.  The applicant also stated in the Notice of Motion that this case involves the following question of great general or public importance which ought to be submitted to the Court of Final Appeal for decision:

“Does an extant RPO give rise to a blanket refusal of judicial avenues for a non-refoulement claimant, despite presenting distinctively new facts and fresh errors of law identified in the decision-making process?”

Analysis

14.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

15.  Notwithstanding the apparent finality of the judge’s decision in refusing to grant leave to appeal[5], the applicant relies on Guo Han Wei v Xie Guomin & Ors [2024] HKCA 695 to contend that this court has residual jurisdiction to set aside the refusal of leave in certain situations of unfair or improper process.

16.  The case of Guo Han Wei makes clear at §5 that the residual jurisdiction is to provide redress in the “extreme situation” where the refusal of leave by the Court of the First Instance cannot be properly regarded as a “judicial” decision, or a decision reached “not by any intellectual process, but through bias, chance, whimsy or personal interest” and it targets “substantial defect in the fairness of the process” which invalidates the decision to refuse leave.

17.  The applicant submitted that the judge’s approach in determining her application for leave to commence judicial review was wholly unfair as she was not given an oral hearing despite the request for hearing in the draft Form 86, and she was given no opportunity to make written submissions for the application for leave to commence proceedings.

18.  The complaint about the lack of oral hearing in respect of her application for leave to bring judicial review is a non-starter as she has been prohibited by the RPO from commencing any fresh proceedings relating to her non-refoulement claim in the High Court and she has not yet obtained leave to file her Form 86. In such circumstances, there is nothing wrong for the judge not to conduct an oral hearing especially when the terms of the RPO have clearly stated that all applications made pursuant to the RPO and all ancillary matters should be dealt with on paper without any oral hearing unless the court or the designated judge should otherwise direct[6].

19.  The applicant further contended that the process is unfair as she was not given the opportunity to make written submissions for her leave to appeal application. This argument is also untenable. The judge has duly considered the draft grounds of appeal prepared by the applicant’s legal representatives, which contain a few paragraphs of particulars and/or elaboration under each ground, as well as the applicant’s affirmation in support. The judge had also given an opportunity for the applicant to supplement her draft grounds of appeal before handing down the decision of 31 May 2024 but her solicitors chose not to do so[7].

20.  The applicant submitted that the court has become functus officio by then as the court had issued a letter on 8 April 2024 stating that the application was refused on 2 April 2024. However, the court has not become functus officio at that time as the order has not been drawn up (Andayani v Chan Oi Ling [2000] 4 HKC 233). Upon inquiry by the solicitors on 11 April 2024 if the order of 2 April 2024 set out in the court’s letter of 8 April 2024 should be treated as a “formal decision”, the court issued a letter on 16 April 2024 clarifying the position as follows: “The Court has drafted its Decision. However, the Court will give this final chance to the legal representative to complete the Grounds of Appeal. Please treat this as the final opportunity.” As mentioned, the solicitors declined the final opportunity by their letter dated 19 April 2024, taking the view that “a decision has already been made with reasons drafted, and therefore [they] find no utility in filing [their] final Grounds of Appeal at this juncture.”

21.  For the above reasons, the applicant failed to demonstrate any substantial defect in the fairness of the process to invoke the residual jurisdiction to set aside the judge’s decision, which is an “extraordinarily high hurdle to surmount”[8]. The residual jurisdiction should not be misused.

22.  As both the judge’s decision of 31 May 2024 and the order of Kwan VP of 3 September 2024 are not susceptible to appeal, it is unnecessary for this court to consider the substantive merits of the intended application for judicial review when striking out her summons for leave to appeal on 3 September 2024. It is also unnecessary to consider whether the question raised in the Notice of Motion ought to be submitted to the Court of Final Appeal for decision.

23.  For the above reasons, this application for leave to appeal to the Court of Final Appeal is struck out.

24.  Costs should follow the event. The Director seeks costs on an indemnity basis. An indemnity costs order is justified in these circumstances as it is an abuse of process to seek leave to appeal from a decision which is not susceptible to appeal. We make an order nisi that the applicant is to pay the Director’s costs of this application on an indemnity basis, to be taxed if not agreed.