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HCAL 641/2025
[2025] HKCFI 3508
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 641 OF 2025
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Macaganda Eleanor Balbag |
1st Applicant |
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Subbaiyah Amarkalam |
2nd Applicant |
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Director of Immigration
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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 applicants.
3. Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2nd applicant’s application a nullity.
Observations for the Applicants:
THE APPLICATION
1. The applicants are mother, aged 42 and son, aged 9. The mother’s facts form the basis of their joint application.
2. This is the applicants’ joint application for leave to apply for judicial review of the decision of the Director of Immigration dated 13 December 2024 (the “Director’s Decision”) refusing their subsequent claim of HCAL 2961 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
3. 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.
4. The 1st applicants appeared before the Court on 16 June 2025 and admitted that she relied upon the same reasons in their previous claim in support of their subsequent claim application.
The procedural history
5. The applicant is a national of the Philippines. The 1st applicant came to Hong Kong on 4 December 2012 to work as a domestic helper. Her employment contract was prematurely terminated but she did not depart and overstayed since 4 December 2014. She gave birth to the 2nd applicant on 10 May 2016 in Hong Kong. They jointly lodged their application for non-refoulement to the Director. They were legally represented.
6. The Director rejected their claim for the reason that their claim was not substantiated.
7. They appealed to the Torture Claims Appeal Board/Non-refoulement Claims (“the Board”). Having considered the evidence, the Board agreed with the Director and dismissed their appeal.
8. The applicants then applied to the Court of the First Instance for leave to judicial review the Board’s Decision. The Court of the First Instance dismissed their application on 4 December 2020. They were late in filing a notice of appeal and applied to the Court of First Instance for extension of time. The Court of First Instance dismissed their application.
9. They jointly appealed to the Court of Appeal against the Court of First Instance’s decision. The Court of Appeal dismissed their appeal.
10. They issued a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismissed the Notice of Motion.
11. They applied to the Court of Final Appeal for leave to appeal and the Court of Final Appeal dismissed their application on 4 July 2024.
12. By letter dated 11 July 2024, the applicants applied for subsequent claim under section ZO of the Ordinance.
13. By the Director’s Decision, the Director refused their application.
The subsequent claim application
14. Under section 37ZO of the Ordinance, they 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.
15. The mother has submitted additional information to the immigration officer to support her application. Having considered the additional materials and the relevant country of origin information relevant to the application, the immigration officer did not accept her evidence in support of her alleged new fear as she failed to support her assertion with evidence and her assertion was vague and unsubstantiated. Besides, the immigration officer further found that state protection will be available and internal relocation is viable if they return to the Phillippines.
16. The immigration officer therefore found that the applicants failed to satisfy those conditions under section 37ZO of the Ordinance and dismissed their application for subsequent claim.
The application for leave to apply for judicial review application
17. The applicants filed Form 86 on 13 March 2025 for leave to apply for judicial review of the Director’s Decision.
18. In her affidavit in support of her application, the mother did not raise any specific ground to challenge the Director’s Decision.
Discussion
19. 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).
20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother admitted that she relied on the same reasons in her previous claim.
21. For the reasons given by the immigration officer, the immigration officer took the view that the applicants failed to satisfy the conditions in support of their application for subsequent claim.
22. The applicants have not raised any valid ground to challenge the Director’s Decision.
23. I find that there is no realistic prospect of success in the applicants’ subsequent claim. I dismiss their application for leave to apply for judicial review of the Director’s Decision.
The RPO
24. The Director’s findings show that the applicants are 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.
25. 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.
26. 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. Their application should be viewed together with the procedural history of the case.
27. For this reason, the Court has called upon the applicants to appear before it to show cause why RPO should not be made against her. The mother admitted that she relied on the same reasons in her previous claim in support of her subsequent claim application.
28. The mother has been explained the proposed restricted proceedings order before this hearing. Upon being requested to show cause why the Court should not make the RPO against her, the mother said she had nothing to say.
29. The Court further asked the 1st applicant if she had any further submission specific to her son for its consideration. The 1st said she had nothing to add.
30. Having considered the 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:
(1) The Applicant (refers to the 1st and the 2nd applicants or either of them) 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
31. The applicant’s application is dismissed.
32. RPO in terms of paragraph 30 be made against the applicant.
33. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2nd applicant’s application a nullity.
Dated the 19th day of August 2025
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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 Applicants:
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 Applicants on 19/8/2025
Macaganda Eleanor Balbag
and
Subbaiyah Amarkalam
Applicants’ 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 19/8/2025
Director of Immigration
Putative Respondent’s ref. no.:
L/M (31352) & (31353) in ImmD RA 7/37/C (Formerly RBCZ/12210/15 & RBCZ/11117/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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