OTAD JENNY BERGONIO AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

OTAD JENNY BERGONIO AND ANOTHER v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

The Director lawfully refused permission for a subsequent claim because the applicants failed to satisfy s37ZO: they did not demonstrate a significant change of circumstances nor show that, together with prior material, a subsequent claim had a realistic prospect of success; there was no error of law or procedural unfairness in the Director's decision. Given repeated attempts to re-litigate a finally determined claim, a Restricted Proceedings Order under s27 High Court Ordinance and the court's inherent jurisdiction was appropriate to prevent abuse of process.

Citation
[2023] HKCFI 2118
Parties
1st Applicant: Otad Jenny Bergonio; 2nd Applicant (minor): Bandela Cherrytha; Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 August 2023
Case Number
HCAL1043/2022
Procedural Posture
Application for Leave to Apply for Judicial Review / Application for Leave Refused; Restricted Proceedings Order Made
Outcome
Leave to apply for judicial review refused; Restricted Proceedings Order made against the applicants
Legal Topics
Non Refoulement, Torture Claims, Unified Screening Mechanism, Subsequent Claim Under Section 37 ZO, Restricted Proceedings Order, Vexatious Litigation, Leave to Apply for Judicial Review
Source Language
EN
Constitutional Law Administrative Law Immigration Law Civil Procedure Judicial Review Non Refoulement Torture Claims Unified Screening Mechanism +4 more

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Parties

Otad Jenny Bergonio

1st Applicant

Bandela Cherrytha

2nd Applicant (minor)

Director of Immigration

Putative Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Application for Leave Refused; Restricted Proceedings Order Made

Legal Issues

  1. 1 Whether the Director erred in refusing permission for a subsequent non-refoulement claim under s37ZO Immigration Ordinance
  2. 2 Whether applicants demonstrated a significant change of circumstances giving realistic prospect of success
  3. 3 Whether there was any procedural unfairness or error of law in the Director's decision

Ratio Decidendi

The Director lawfully refused permission for a subsequent claim because the applicants failed to satisfy s37ZO: they did not demonstrate a significant change of circumstances nor show that, together with prior material, a subsequent claim had a realistic prospect of success; there was no error of law or procedural unfairness in the Director's decision. Given repeated attempts to re-litigate a finally determined claim, a Restricted Proceedings Order under s27 High Court Ordinance and the court's inherent jurisdiction was appropriate to prevent abuse of process.

Court Disposition

Leave to apply for judicial review refused; Restricted Proceedings Order made against the applicants

Orders

  • Leave application for judicial review dismissed
  • Applicants prohibited from commencing or continuing any proceedings in the High Court relating to any non-refoulement claim without the leave of a Judge of the Court of First Instance