WAHYUNI v. DIRECTOR OF IMMIGRATION

HCAL 442/2021

[2021] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 442 OF 2021

________________________

________________________

________________________

D E C I S I O N

________________________

A.  Introduction

1.  By his Decision dated 6 July 2021 [2021] HKCFI 1991, Chow JA (sitting as an additional Judge of the Court of First Instance)  made, amongst others, the following orders:

(1)  an order dismissing the Applicant’s application for leave to apply for judicial review in these proceedings; and

(2)  a restrictive proceedings order (“RPO”), prohibiting the Applicant from commencing or continuing any legal proceedings relating to a non-refoulement claim by the Applicant in the High Court, without leave of the Court of First Instance.

2.  By affirmation dated 21 September 2021, the Applicant has now applied to quash the RPO, as she wants to appeal or begin fresh proceedings.

3.  Under the terms of the RPO itself, the Applicant was to give at least seven days’ notice in writing to each intended defendant or respondent of her intention to make the application, and to enclose with the application any response received.  No response was included with the application.

4.  Further, any intended defendant or respondent having notice of this application is entitled, but under no obligation, to place before the Court written representations about the application.  As at the date of this Decision, no written representations have been received

5.  In accordance with the terms of the RPO itself, and with the Practice Direction 11.3, this application is being dealt with by the Court on paper and without any oral hearing.

B.  Basis of Application

6.  The Applicant’s affirmation attaches a document setting out what she says are her grounds of the application.  They are as follows [sic]:

I.  I am an Indonesian woman.  I am helpless.  In Indonesia I have life threat.  If I return I will be killed.

II.  The High Court can protect my life.  But the High Court gave me RPO.  I am very very afraid the Director of Immigration will send me back to Indonesia.

III.  Court is the last hope for me but I got RPO.

IV.  Please quash RPO from me.  I want to appeal and fresh proceding.

I hope the last hope will not reject my humanitarian apply.

C.  Procedural History

7.  By these proceedings, HCAL 442/2021, the Applicant sought leave to apply for judicial review of the decision (“Decision”)  of the Director of Immigration (“Director”)  given by 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.  The previous background is as follows.

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

9.  The claim for protection was unsuccessful right through the decisions of the Director, the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office, and the Courts.  The original rejection by the Director was on 19 December 2016.  The final dismissal of the Applicant’s application for leave to appeal from the Court of Appeal decision was dismissed by the Appeal Committee of the Court of Final Appeal on 4 May 2020.

10.  By letter dated 18 June 2020, the Applicant requested to make a subsequent claim.  That request was refused by the Decision.

11.  Notably significantly out of time, the Applicant applied for leave to apply for judicial review of the Decision on 29 March 2021. Following the hearing on 6 July 2021, Chow JA held that it was plain that the intended grounds of judicial review raised by the Applicant were not reasonably arguable, and the intended application for judicial review had no realistic prospect of success.  The application for leave was dismissed.

12.  Prior to that hearing, the Applicant was notified that the Court was of its own motion considering imposing an RPO.  At the hearing, the Applicant asked the Court for one more chance to go to the High Court, saying that she still needed to finish her business in Hong Kong did not want to leave Hong Kong.  She also stated that she still had an issue in Indonesia because she owed people there that she had not repaid.

13.  In his Decision, Chow JA stated that he considered it to be clear that the Applicant’s conduct in seeking persistently to re-litigate her non-refoulement claim without viable grounds amounted to an abuse of process.  Hence he made the RPO against her.

D.  Consideration

14.  As can be seen from the affirmation in support of the current application, the Applicant has provided no new or further information as might justify any subsequent claim, following the full consideration and rejection of her original claim.  If anything, the simple repetition of matters already fully considered and the other matters stated only emphasise the vexatious and calculated attempt by the Applicant to delay the inevitable and/or a refusal to accept the unfavourable final result of litigation.

15.  In the circumstances, I see no basis for exercising the discretion to set aside the RPO, or to permit the Applicant in any event to appeal or commence any fresh proceedings.

E.  Result

16.  The Applicant’s application is therefore dismissed.