KISAN PURNIMA v. DIRECTOR OF IMMIGRATION

HCAL 636/2022

[2022] HKCFI 3168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 636 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 oral submissions by the Applicant 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.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 23 June 2022 (the “Director’s Decision”) refusing her subsequent claim of HCAL 386 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.  This is an adjourned hearing. At the first hearing on 15 August 2022, the applicant said that she had applied for legal aid and her application was under processing. In accordance with section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91, the case was adjourned for 42 days from the date of hearing. On the date of hearing on 28 September 2022, the applicant said that her application is still being processed. Having considered the merits of her case, the Court decided to proceed with the hearing.

The procedural history

4.  The applicant is an illegal immigrant from Nepal for staying in Hong Kong without permission. She came to Hong Kong on 10 April 2009 illegally from China. She surrendered to the Immigration Department. She raised non-refoulement claim with the Immigration Department by written representation dated 20 July 2010 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; the 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 28 January 2016 and a Notice of Further Decision dated 20 October 2017 respectively on all applicable grounds.

6.  She appealed to the Torture Claim Board (the “Board”). By its Decision dated 14 February 2018 (the “Board’s Decision”), the Board rejected her appeal on all applicable grounds.

7.  She applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 12 December 2018 (the “Court’s Order”).

8.  She appealed against the Court’s Order to the Court of Appeal and her application was refused by the Court of Appeal on 8 April 2019.

9.  Her Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 12 July 2019.

10.  Her application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was withdrawn on 12 June 2020.

11.  She applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 29 March 2022.

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

The subsequent claim application

13.  The factual basis of her previous claim is that if she is refouled, she will be (a) discriminated by others because she came from a lower caste in Nepal; and (b) ill-treated or even killed by Mr. Ram Parsard Pandit (“Pandit”) and his men because she refused to marry him.

14.  The Director found that her claim was not substantiated. He found that that the level of risk she would come across was low as Pandit only wanted to marry her and to have a baby and she had not sought police assistance in Nepal; that state protection was available to her [18] and that internal relocation was an option open to her [22].  She appealed to the Board.

15.  The Board agreed with the Director. The Board also found that there was no evidence to show that she would be harmed by other people because of her caste in Nepal. There was also no evidence to show that Pandit is so influential that he could locate her nationwide.

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 submitted her statement to the immigration officer saying that she was told by her family members that Pandit and his people have been causing troubles to the family, including going to the family and slapped her father’s face, attempted to rape her sister and hit her brother. Her sister had to move to her husband’s working place. She also said that the people around looked down upon her and her family because she belongs to the low caste of the society. The Director considered that her enemy is the same and those issues above are the continuation of the same cause in her previous claim, which had been considered and rejected.

18.  The Director does not accept that there is significant change of circumstances, which, coupled with the previous claim, will not give the subsequent claim a realistic prospect of success of her subsequent claim.

The application for leave to apply for judicial review application

19.  The applicant has filed an affirmation in support of her application. She set out the grounds below.

a.  The Director did not focus on her claim.

b.  Procedural impropriety: failure to apply para 2 of the UN Committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the COI to understand her situation; failure to conduct any screening interview; failure to consider that it is dangerous for her to return to Nepal.

c.  Error/misdirection in law: failure to consider her new fact for her application.

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, §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 had nothing to say.

22.  As to the grounds under paragraph 18 above, except one, they are her assertions or opinions without any evidence to support. As to her complaint that there was no screening interview for her application. This is provided under the Ordinance. As there was a screening interview for her previous claim and she now relies upon the same facts, it is unnecessary to have another screening interview. There is nothing amiss in this procedure. There is no valid ground from the applicant to challenge the Director’s Decision.

23.  It is quite clear that the applicant is re-litigating her previous claim in her subsequent claim application.

24.  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.

25.  Since 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

26.  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.

27.  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.

28.  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.

29.  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.

30.  Upon being requested to show cause why the Court should not make the RPO against her, the applicant had nothing to say.

31.  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 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

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