MAHILUM ARLYN AROPO AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 1629/2024

[2025] HKCFI 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1629 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant, aged 41, is the mother of the 2^nd applicant, son, aged 9 and the 3^rd applicant, daughter, aged 7. The 1^st applicant will be called “the mother” and the 2^nd and the 3^rd applicants, “the children”. This is their joint application for leave to apply for judicial review of the Notice of Decision dated 5 September 2024 (the “Director’s Decision”) refusing their application for subsequent claim of HCAL 1894 of 2018 (“the mother’s previous claim) and HCAL 2601 of 2018 (“the children’s 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.  Since the son and the daughter are minors. The Court has advised the mother to obtain legal aid from the Director of Legal Aid (“DLA”) for them. However, they were not represented before the Court on 12 February 2025 because, as the 1^st applicant explained, the Director of Legal Aid had refused their application.

4.  The children’s claims will rely on the facts relating to the mother.

The procedural history

The mother’s previous claim (HCAL 1894 of 2018)

5.  The mother is a Filipina national. She came to Hong Kong to work as a domestic helper. Upon termination of her contract, she did not depart and overstayed. She lodged her non-refoulement claim on 4 December 2015 on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend because of a break-up with him.

6.  The Director refused her claim as it was not substantiated. She appealed to the Board. The Board was of the view that her evidence was unreliable and found that her purpose of coming to Hong Kong was economic, rather than to avoid her boyfriend. It dismissed her appeal.

7.  She applied to the High Court for judicial review of the Board’s Decision. She failed all the way to the Court of Final Appeal, which dismissed her application for leave to appeal on 15 March 2022.

The children’s previous claim (HCAL 2601 of 2018)

8.  The mother, acting as the guardian, made non-refoulement claims for her children. Before the Director, the children were legally represented. The Director refused their claims. They jointly appealed to the Board. By the Board’s Decision dated 23 August 2018, the Board dismissed their appeal. The children applied to the Court of the First Instance for leave for judicial review of the Board’s Decision. The Court of the First Instance refused their application. They pursued the matter to the Court of Appeal and finally to the Court of Final Appeal, which dismissed their application for leave to appeal on 15 March 2022.

The subsequent claim application

9.  The mother and the children applied to the Director by letter dated 26 March 2024 to apply for subsequent claim for non-refoulement. The Director rejected their joint application for the reason that their claim was not substantiated.

10.  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.

11.  In support of their subsequent claim, the duty lawyer, acting on their behalf, submitted supporting documents to the immigration for consideration. Having considered the additional materials, the immigration officer made these comments at paragraph 10:

“10. … After careful consideration, it is noted that your source of fear, as mentioned in your previous claim that you, your son and your daughter would be ill-treated or killed by the Maluya [her boyfriend], remains unchanged, which has been considered as not substantiated….”

12.  For the above reasons, the Director refused their application for subsequent claim.

The application for leave to apply for judicial review

13.  The applicants have filed Form 86 on 19 September 2024 for judicial review of the Director’s Decision.

14.  The 1^st applicant has filed an affidavit in support of their application and said that the Director had disregarded her dangerous situation.

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant admitted that she relied on the same reasons of her previous claim.

17.  The immigration officer had given separation consideration for the minors. See paragraph 12 of the Director’s Decision.

18.  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

19.  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.

20.  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.

21.  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.

22.  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 1^st applicant has been explained the proposed restricted proceedings order before this hearing.

23.  Upon being requested to show cause why the Court should not make the RPO against them, the 1^st applicant said she had nothing to say.

24.  Having considered the 1^st 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 1^st 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

25.  The applicants’ joint application is dismissed.

26.  RPO in terms of paragraph 24 be made against the applicants.