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HCAL 789/2024
[2024] HKCFI 1764
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 789 of 2024
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Rina-Matopani-Bt-Toha-Anwari |
Applicant |
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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 25 April 2024 (the “Director’s Decision”) refusing her subsequent claim of HCAL 1071 of 2019 (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. The applicant appeared before the Court on 19 June 2024 and admitted that she relied upon the same reasons in her previous claim in support of her subsequent claim.
The procedural history
4. The applicant is a national of Indonesia, aged 42. She entered Hong Kong as a foreign domestic helper. Her employment contract was terminated and she asked the Director for permission to overstay. The Director rejected her application. She applied for non-refoulement claim by a written signification dated 20 June 2017.
5. Her non-refoulement claim was based on the grounds of all applicable risks[1] for the reason that, upon refoulement, she will be harmed or killed by a loan shark named Ade Irawan because she failed to repay the loan.
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 16 April 2019 (“the Board’s Decision”), the Board dismissed her appeal for the reason that the applicant refused to give evidence despite she had been warned by the adjudicator that there were some points that she had to clarify. The Board therefore found that her evidence was not reliable.
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. She was out of time. The Court of the First Instance refused to extend time for her to appeal.
9. She appealed and pursued all the way to the Court of Appeal, which refused to grant an extension of time for her to appeal against the decision of the Court of the First Instance.
10. By letters respectively dated 26 February 2024 and 27 February 2024, the applicant applied for subsequent claim under section ZO of the Ordinance.
11. By the Director’s Decision, the Director refused her application.
The subsequent claim application
12. 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.
13. Her application for duty lawyer service was rejected. She provided additional materials in support of her application by letters respectively dated 18 March 2024 and 27 March 2024 for the immigration officer’s consideration.
14. The immigration officer considered the applicant’s additional materials. In gist, the applicant fears that, upon refoulement, she will be harmed or even killed by the loan shark because she is unable to pay back the loan. She also fears that she will be harmed or killed by her ex-husband because she cannot tell him where the kid is. Her kid had left the premises with his family to somewhere she does not know.
The application for leave to apply for judicial review application
15. The applicant filed Form 86 on 17 May 2024 for leave to apply for judicial review of the Director’s Decision.
16. In her affirmation in support of her application, the applicant said that her life would be in danger if she returned to Indonesia.
Discussion
17. 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).
18. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that she relied on the same reasons in her previous claim in support of her subsequent claim.
19. With her admission before the Court, 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
20. 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.
21. 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.
22. 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.
23. 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.
24. Upon being requested to show cause why the Court should not make the RPO against her, the applicant said she had nothing to say.
25. 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 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
26. The applicant’s application is dismissed.
27. RPO in terms of paragraph 25 be made against the applicant.
Dated the 23rd day of July 2024
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(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:
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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)).
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Sent to the Applicant
on 23/7/2024
Rina-Matopani-Bt-Toha-Anwari
Applicant’s ref. no:
Nil
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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 23/7/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (30363) in ImmD RA 7/37/C (formerly RBCZ/11429/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 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”)
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