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HCAL 1238/2022
[2023] HKCFI 632
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1238 of 2022
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BETWEEN
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Rohimah |
1st Applicant |
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Rohimah Zeina Az Zahra |
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 applicant.
Observations for the Applicant:
THE APPLICATION
1. The 1st applicant is the mother of the 2nd applicant, who is her daughter, aged 6. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 11 October 2022 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 1891 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. The 1st applicant appeared before the Court on 13 February 2023.
The procedural history
3. The first applicant is an Indonesian national and the second applicant is her daughter. The first applicant came to Hong Kong on 9 January 2015 as a domestic helper and was allowed to stay in Hong Kong until 9 January 2017 or earlier termination of her contract. Her contract was pre-maturely terminated, but she did not depart. On 16 December 2015, she surrendered to the Immigration Department and lodged her non-refoulement claim by a written signification dated 18 April 2016. On 7 May 2016, she gave birth to her daughter, the second applicant. By a written signification dated 26 July 2016, she lodged a non-refoulement claim on behalf of the second applicant.
4. Their non-refoulement claims 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”).
5. Their claims were rejected by the Director by a Notice of Decision dated 21 November 2016.
6. They appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 14 August 2018 (the “Board’s Decision”), the Board dismissed their appeal.
7. They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 4 August 2020 (“the Court’s Order”).
8. Their appeal against the Court’s Orders was dismissed by the Court of Appeal on 15 June 2021.
9. Their Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 24 December 2021.
10. Their application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 26 July 2022.
11. They applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 15 August 2022.
12. By the Director’s Decision, the Director refused their application.
The subsequent claim application
13. The 2nd applicant’s non-refoulement application was filed by the 1st applicant adopting the same personal background and claim as the 1st applicant. In other words, the claim and appeal of the 2nd applicant stand and fall with those of the 1st applicant.
14. Briefly stated, the 1st applicant claimed that if refouled, she feared that she and her daughter would be harmed or killed by her parents and her husband as they noticed that she got pregnant in Hong Kong and also her loan-shark creditor and his men because she failed to repay the debt.
15. The Director found that the level of risk of her and her daughter being harmed by her parents, her husband or the creditor was low ; state protection was available to her; internal relocation was an option open to her and the applicant failed to establish her claim under BOR 2 risk.
16. The applicants appealed to the Board. After hearing the 1st applicant and having considered the evidence, the Board dismissed their appeal on the grounds that it did not believe the 1st applicant’s evidence on (i) her husband would harm her upon her return; (ii) that she feared the loan-shark; and (iii) that the creditor’s people would find her if she relocated in Indonesia. The Board also found that the applicant had failed to establish that there were substantial grounds which supported the conclusion that she would face a real risk of ill-treatment if she returned to Indonesia.
17. 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.
18. In support of their subsequent claim, the 1st applicant submitted, in gist, to the Director that her sources of fear if she and her daughter return to Indonesia are:
a. she and her daughter will be treated or even killed by her parents and her husband because they noticed she got pregnant in Hong Kong;
b. she and her daughter will be ill-treated or even killed by the creditor because she failed to repay her debt;
c. she will be punished by the Indonesian government due to the adultery; and
d. her daughter will be discriminated and bullied because she is an illegitimate child.
19. The Director found that 18.a. and b. are the same issues in the previous claim as the enemies are the same enemies. These issues had been considered and rejected by the Board. As to 18.c., there is no charge of adultery against her. That her parents or her husband will report to the police is her speculation only. The 1st applicant may also relocate to other places where the punishment will be less harsh. In any event, she cannot rely upon this ground in support of her application. As to 18.d., the Director has considered the country of origin information (“COI”), which states that state protection will be available to her. Also, there are governmental or non-government organizations, which will provide assistance or service for the applicants.
20. The Director therefore found that the additional information, when considered together with their previous claims, 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
21. The 1st applicant has filed an affirmation in support of their application, in which she said she is a genuine non-refoulement claimant. She believes that the Director’s Decision is wrong because he has not gone to her country to understand the situation there.
DISCUSSION
22. 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).
23. 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 said she wants to stay in Hong Kong to look after her child, who was born in Hong Kong. The father of the child had disappeared.
24. I note that the 2nd applicant is a minor in this case and she was not legally represented before the Director or this Court. Their case was considered by the Director with separate consideration for the 2nd applicant. The Director had taken into consideration that the 2nd applicant will not be discriminated and there will be state protection. Internal relocation is also viable for her. This is the fact that the Director is entitled to find after considering the evidence before him.
25. The 1st applicant has not raised any special child-specific issues for her children before the Director or this Court. I shall treat the non-legal representation for the minors as a mere irregularity, relying upon the decision of the Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53:
“33. … 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 .”
26. The reasons of the 1st applicant under paragraph 21 are not valid reasons to challenge the Director’s Decision. The Director can rely upon the COI for the situation in her country. It is unnecessary for the Director to go to her country to understand the situation there.
27. 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.
28. Since 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 represented the other applicant. She 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 had nothing to say.
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’ application is dismissed.
36. RPO in terms of paragraph 34 be made against the applicants.
Dated the 9th day of March 2023.
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(C.S. FUNG (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 Applicant:
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 Applicant
on 9 March 2023
Rohimah and Rohimah Zeina Az Zahra
Applicant’s 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 9 March 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (26342) & (26343) in ImmD RA 7/37/C (formerly RBCZ/11535/16 & RBCZ/12770/16 respectively)
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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