HCAL 1328/2022
[2023] HKCFI 750
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1328 of 2022
BETWEEN
Tran Van Song
1st Applicant
Bui Thi Lan
2nd Applicant
Tran Thi Van Anh
3rd Applicant
Tran Duc Long
4th Applicant
Tran Quoc Trung
5th Applicant
and
Director of Immigration
Putative
Respondent
Application for Leave to Apply for Judicial Review
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 father, the 2nd applicant is the mother and the 3rd , 4th and 5th applicants are their children. This is their joint application for leave to apply for judicial review of the decision of the Director of Immigration dated 28 September 2022 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 2899 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.
3. The 1st and the 2nd applicants appeared before the Court on 27 February 2023 representing the other applicants, who were absent.
The procedural history
4. The applicants are national of Vietnam. The 1st applicant, the 2nd applicant, the 3rd applicant and the 4th applicant came to Hong Kong on 21 December 2013 and were permitted to stay until 28 December 2013. The applicants applied to the United Nations High Commissioner for Refugees for asylum. The applicants surrendered to the Immigration Department as they were in breach of the conditions of stay. On 7 May 2014, the 1st applicant and the 2nd applicant, on behalf of themselves and the 3rd applicant and the 4th applicant, lodged claim for non-refoulement. On 15 September 2014, the Immigration Department issued removal order against them. On 16 March 2016, the 2nd applicant gave birth to the 5th applicant. On 4 May 2016, the 1st applicant lodged a claim for non-refoulement for the 5th applicant.
5. 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”).
6. Their claims were rejected by the Director by a Notice of Decision and a Notice of Further Decision respectively dated 2 September 2016 and 20 November 2017 (“the Director’s Decisions”).
7. They appealed the Director’s Decisions to the Torture Claims Appeal Board (the “Board”). By its Decision dated 14 December 2018 (the “Board’s Decision”), the Board dismissed their appeals.
8. They applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 6 November 2020 (“the Court’s Order”).
9. Their appeal against the Court’s Order was dismissed by the Court of Appeal on 7 December 2021.
10. 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 January 2022.
11. Their joint application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision filed on 26 April 2020 is still being processed.
12. They jointly applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 14 June 2022.
13. By the Director’s Decision, the Director refused their joint application.
The subsequent claim application
14. The other applicants rely on the factual background of the 1st applicant.
15. Briefly stated, the 1st applicant claimed that if refouled, he and his family members would be harmed or killed by his creditor because he was unable to repay the debt owed to the creditor.
16. The Director found that it was a private monetary dispute where there was no evidence that the state was involved; that state protection would be available to them and that internal relocation would be their viable option. The Director, therefore, refused their claims.
17. 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 the loan, failure of his business or he was threatened by the creditor.
18. 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.
19. In support of their subsequent claim, the 1st applicant submitted a statement together with 2 documents. The gist of his statement repeated the same story of their previous claim. The documents are irrelevant to their claim.
20. The Director therefore found that the additional information, when considered together with their previous claim, 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 he only enclosed a copy of the Director’s Decision without setting out any specific ground.
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 he understood the Director’s Decision. He also admitted that he relied on the same reasons of their previous claim for their subsequent claim application.
24. I note that the 3rd , the 4th and the 5th applicants are minors in this case and they are not legally represented before this Court. But they were legally represented before the Board. The minors-specific issues had been considered before the Court of the First Instance and the Court of Appeal in the previous claim. Therefore, the child-specific issues raised in Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 , 27 November 2020 do not apply to this case. I shall treat the non-legal representation for the minors as a mere irregularity, which will not nullify this application.
25. 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.
26. Since there is no realistic prospect of success in their subsequent claim, I dismiss their joint application for leave to apply for judicial review of the Director’s Decision.
The RPO
27. 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.
28. 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.
29. 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.
30. 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 applicants. He has been explained the proposed restricted proceedings order before this hearing.
31. Upon being requested to show cause why the Court should not make the RPO against them, the 1st applicant said he understood it and had nothing to say.
32. 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
33. The applicants’ application is dismissed.
34. RPO in terms of paragraph 32 be made against the applicant.
Dated the 23rd day of March 2023.
(C.S. FUNG (Ms))
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 :
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);
Sent to the ApplicantTran Van Song Bui Thi Lan Tran Thi Van Anh Tran Duc Long Tran Quoc Trung
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 23 March 2023Director of Immigration 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”)