|
HCAL 945/2024
[2024] HKCFI 2256
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 945 of 2024
|
BETWEEN
|
| |
Yamon Riza Raga |
Applicant |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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. This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 3 June 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2757 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 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.
3. Due notice has been given to the applicant to attend court on 12 August 2024. However, the applicant was absent. The Court received a letter on 15 July 2024, in which the applicant said that she did not want an oral hearing, but she had applied for legal aid. She asked the case to be adjourned until she had the result of her legal aid application. She had also set out her grounds challenging the Director’s Decision. I shall deal with these grounds below.
4. Having considered the merits of the applicant’s case, I found that there is no merit in her application. I therefore exercised my discretion under section 15(4) of the Legal Aid Ordinance, Cap. 91 to refuse to adjourn the hearing[1]. I shall deal with her application on paper.
The procedural history
5. The applicant is a national of the Philippines, aged 35. She entered Hong Kong as a visitor on 7 April 2016. She was permitted to stay until 21 April 2016. She overstayed. On 27 June 2016, she surrendered to the Immigration Department. On 18 July 2016, she raised her non-refoulement claim on the grounds of all applicable risks[2] based upon the reason that, if refouled, she would be harmed or killed by her maternal grandfather’s brother, Junior Raga (“her granduncle”) because of a land dispute.
6. Her claim was rejected by the Director for the reason that her claim was not substantiated.
7. She appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). By Decision dated 13 November 2018 (“the Board’s Decision”), the Board dismissed her appeal. The Board found that the applicant had no evidence to prove the facts of her case and rejected her claim that her grandmother owned a coconut farm; that her grandmother suffered from diabetes and that her mother had borrowed money from her granduncle. The Board also found that state protection would be available to her; that internal relocation was an option open to her and that she did not face a real risk of harm from her granduncle in the foreseeable future.
8. She applied to the Court of the First Instance for leave to apply for judicial review of the Board’s Decision. The Court of the First Instance dismissed her application.
9. She appealed and pursued all the way to the Court of Appeal, which dismissed her appeal.
10. Her notice of motion against the Court of Appeal’s decision to the Court of Final Appeal is still pending.
11. By letters dated 15 February 2024, the applicant applied for subsequent claim under section ZO of the Ordinance.
12. By the Director’s Decision, the Director refused her application.
The subsequent claim application
13. Under section 37ZO 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 realist prospect of success.
14. The applicant told the immigration officer that her granduncle had filed a false information with the police and she would like to obtain a copy from the Philippines to prove her case. However, she was unable to do so. The immigration officer further considered that state protection would be available to her and internal relocation would also be a viable option open to her. She might live in Cebu.
15. Having considered the additional evidence, the immigration officer did not accept that there had been a significant change of circumstances since her previous claim was finally determined and such change, if any, when taken together with the materials previously submitted in support of her previous claim, would give the subsequent claim a realistic prospect of success. The Director therefore dismissed her application.
The application for leave to apply for judicial review application
16. The applicant filed Form 86 on 17 June 2024 for leave to apply for judicial review of the Director’s Decision.
17. In her letter to the Court, she raised the grounds below in support of her application.
(1) Her case was not determined fairly as she did not have translation service or legal assistance.
(2) The Director had unlawfully fettered his discretion by refusing her application.
(3) The Director had acted in a procedurally unfair manner and his decision is unreasonable or irrational in the public law sense or as a result of an error or unfairness.
(4) The Director failed to meet the greater care and duty owed to a self-represented clamant.
(5) The Director’s way of dealing with her application was only a quick disposal of it, which is unacceptable.
Discussion
18. 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).
19. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
20. As to the grounds under paragraph 17, the Court of Appeal has ruled that the applicant is not entitled to interpretation service all the time as she may desire[3]. Also, she is not entitled to free legal representation at all stages of the proceedings[4]. Ground 1 fails. The other grounds are her personal opinions or assertions without any evidence in support. They are not valid grounds to challenge the Director’s Decision.
21. I find that 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
22. The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her previous 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.
23. 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 Direcctor 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.
24. In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance 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.
25. 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. Since she expressly declined to attend the hearing, she is treated as abandoning her right to make submissions on the RPO.
26. 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 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 the 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 Court.
(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
27. The applicant’s application is dismissed.
28. RPO in terms of paragraph 26 be made against the applicant.
Dated the 10th day of September 2024
| |
(M.O. WONG)(Ms)
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 10/9/2024
Yamon Riza Raga
Applicant’s ref. no:
Nil |
|
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 10/9/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (30291) in ImmD RA 7/37/C (formerly RBCZ/12741/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Section 15 (4) of the Legal Aid Ordinance, Cap.91:
“Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run.”
[2] All applicable risks are:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk under 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”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk by 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”)
[3] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
[4] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
|