SHAHI YASODA v. DIRECTOR OF IMMIGRATION

HCAL 35/2022

[2022] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 35 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being present in open court;

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.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration.

2.     This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 25 November 2021 (the “Director’s Decision”) refusing her subsequent claim of HCAL 311 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

3.     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.

The procedural history

4.     The applicant is an illegal immigrant from Nepal. She raised non-refoulement claim with the Immigration Department by written representation received on 20 August 2014 on the grounds of Torture risk; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.

5.     Her claim was rejected by the Director by a Notice of Decision dated 26 June 2017.

6.     She appealed to the Torture Claims Appeal Board (the “Board”). By its Decision dated 16 January 2018 (the “Board’s Decision”), the Board dismissed her appeal.

7.     She applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 17 April 2019 (the “Court’s Order”).

8.     Her application for appeal against the Court’s Order to the Court of Appeal was dismissed by the Court of Appeal on 12 July 2019.

9.     His application for leave to appeal against the Court of Appeal’s order was dismissed by the Court of Appeal on 23 March 2021

10.     Her notice of motion for leave to appeal the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 26 August 2021.

11.     She applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter of 11 October 2021.

12.     By the Director’s Decision, the Director refused her application.

The subsequent claim application

13.     The factual basis of her claim is that if she is refouled, she will be harmed or killed by her brother-in-law and the villagers because she converted from Hindu to Christian in around 2006.

14.     The Director found that her claim was not substantiated. He found that there were no substantial reasons for believing that she would be harmed or killed by her brother-in-law, as judged from her experience in Nepal; that state protection was available to her and that internal relocation was an option open to her.

15.     The Board affirmed the Director’s Decision. It further found that her oral evidence was inconsistent with her statement. She had converted to Christian for a long period of time without being disturbed by her brother-in-law or other people. She came to Hong Kong because her daughter in Hong Kong was pregnant and she wanted to assist her daughter.

16.     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 realistic prospect of success.

17.     In support of her subsequent claim, the applicant said that her husband and her son supported her conversion from Hinduism to Christianity and her husband was kidnapped and died under suspicious circumstances and her son’s whereabouts were unknown. She also feared that she might lose her freedom under the Anti-conversion law passed in late 2018. She also said that she and her daughter had converted her grandson from an atheist to Christian by enrolling him in a Christian primary school.

18.     The Director did not accept that there is significant change of circumstances and such information, coupled with the original claim, would give her subsequent claim any realistic prospect of success. Her evidence in relation to her husband and her son was inconsistent and contradictory to her previous statement. The Director found her evidence not credible. That her husband was dead and her son disappeared was incredible as there was no credible evidence to show the fact of the case. The claimed threat from her in-laws and villagers had been considered in her original claim. The fact that she had converted her grandson from being an atheist to a Christian by enrolling in a Christian school is far-fetched.

The application for leave to apply for judicial review application

19.     The applicant has filed an affidavit in support of her application by stating that the Director’s Decision is unfair and unreasonable.

20.     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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.     The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed her subsequent relied upon the same story of her original claim.

22.     The Director is entitled to reach his conclusion after considering her evidence as he did in this case.

23.     The applicant has raised no valid challenge to the Director’s Decision. The Director has rejected her evidence on the additional materials in support of her subsequent claim. I agree with the Director that it is far-fetched to say that she had converted her grandson from being an atheist to a Christian and this in contravention with the Anti-Conversion Act. I also do not understand why she would lose her freedom under the said Act as she had converted from Hinduism to Christianity herself.

24.     It is quite clear that the applicant is re-litigating her original claim in her subsequent claim 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 chance of success in her intended judicial review of the Director’s Decision, I dismiss her application.

The RPO

27.     The Director’s findings show that the applicant is attempting to re-litigate the facts in support of her original 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.

28.     RPO is appropriate for the present case. See The Secretarty 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 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.

30.     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. Before me, she said that she wanted to stay in Hong Kong because she felt safe here.

31.     I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings on the same facts of the original claim 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 Deputy 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 his 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 this Court or the designated Judge 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 this Court or the designated Judge 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 this Court or the designated Judge, 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

32.     The applicant’s application is dismissed.

33.     RPO in terms of paragraph 31 be made against the applicant.

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

Form CALL-1