PUNAM GHARTI MAGAR SINJALI v. DIRECTOR OF IMMIGRATION

HCAL 1137/2021

[2021] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1137 of 2021

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 Applicant 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 applicant.

Observations for the Applicant:

THE APPLICATION

1.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration.

2.  This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 27 July 2021 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1179 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

3.  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

4.  The applicant is an illegal immigrant from Nepal. She raised non-refoulement claim with the Immigration Department by written representations from 15 November 2016 to 6 March 2017 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life risk under Article 2 of the Bill of Rights Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. 

5.  Her claim was rejected by the Director by a Notice of Decision dated 25 August 2017.

6.  She appealed to the Torture Claim Board (the “Board”). By its Decision dated 30 April 2018 (the “Board’s Decision”), the Board rejected her appeal.

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

8.  She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 19 June 2019.

9.  Her 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 14 August 2019.

10.  Her 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 30 March 2021.

11.  She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 7 April 2021.

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

The subsequent claim application

13.  The factual basis of her claim is that if she is refouled, she will be harmed or killed by Ajay Shrestha’s (“Ajay”) family and those debt collectors from the Rastriya Banijya Bank of Nepal.

14.  The Director found that her claim was not substantiated. He found that the level of her being harmed or killed if she returned to Nepal was assessed to be low; that reasonable state protection was available to her and that internal relocation was an option open to her.

15.  The Board agreed with the Director. The Board also found that her evidence was not credible and therefore she was unable to establish that she would face a real risk of ill-treatment at the hands of those people in Nepal if refouled.

16.  Under section 37 ZO 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.

17.  She relied upon the information from her friend in Nepal that her father was killed by her enemy. Also, her sister Anjali was also killed. She suspected that Anjali was also killed by her enemy.

18.  The Director rejected her grounds in support of her subsequent claim for the reasons that the information was hearsay evidence from her friend, which could not be tested. The Director does not accept that those are significant change of circumstances as her enemies are the same enemies in her original claim. Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to file judicial review application

19.  The applicant has filed an affirmation in support of her application. She said the Director had placed an unnecessarily high threshold in determining the realistic prospect of success; that he had not taken her unique situation into account; that his Decision was biased and only repeated the decisions of the TCAB; that it was procedurally unfair for not allowing appeal at the TCAB and that the Director was simply trying to dispose of her case as quickly as possible without giving careful consideration of all the information and evidence.

20.  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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

21.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she did not know what to say.

22.  The Director is entitled to reach his conclusion after considering her evidence as he did in this case. The applicant has raised no valid challenge to the Director’s Decision or finding of the fact. There is no evidence to show that the Director has raised the threshold for her subsequent claim. She cannot appeal to the Torture Claim Appeal Board because this is the procedure provided under the Ordinance. The Board had assessed the case in her original claim. She still has the remedy of judicial review of the Director’s Decision. This is her opportunity here. Her other comments are her own opinions without any evidence in support of them. They are not valid grounds to challenge the Director’s Decision.

23.  It is quite clear that the applicant is re-litigating her original claim in her subsequent claim application. According to the Director, the incidents after the determination of the original claim are the continuation of the facts in the original claim.  I agree.

24.  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.

25.  Since there is no realistic prospect of success in her subsequent claim, I dismiss her application for leave to apply for judicial review of the Director’s Decision.

The RPO

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

27.  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.

28.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and 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.

29.  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.

30.  Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.

31.  Having considered the applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicant 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:

(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 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 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.

DISPOSITION

32.  The applicant’s application is dismissed.

33.  RPO in terms of paragraph 31 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