DIRECTOR OF IMMIGRATION v. SUMON MIAH

HCMP 1476/2021

[2022] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1476 OF 2021

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D E C I S I O N

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A. Introduction

1.  This is the Director’s application under section 27 of the High Court Ordinance Cap 4 for an order prohibiting the Defendant from instituting or continuing with legal proceedings relating to any non-refoulement claim without the leave of the Court of First Instance (“CFI”).

2.  This application is one among the many brought by the Director recently to curb unsuccessful non-refoulement claimants’ attempts to keep theirs cases alive in the judicial system, even after they have exhausted all available judicial procedures to overturn the decision of the Torture Claim Appeal Board/Non-refoulement Claims Petition Office (“Board”) by way of judicial review.

3.  The litigation history of these non-refoulement claimants against whom a section 27 order is sought follows a usual track.  An unsuccessful claimant, after his case has been rejected by both the Director and then the Board, would apply for leave for judicial review to challenge the Board’s decision.  It may take four sets of proceedings for the case to reach the Court of Final Appeal (“CFA”): an application for leave to apply for judicial review at the CFI level, an appeal to the Court of Appeal (“CA”), an application to the CA for leave to appeal to the CFA; and finally, an application to the CFA itself for leave to appeal to the CFA.

4.  Sometimes, the claimant might be late in his or her appeal to the CA.  Then there will be an extra application to the CFI for leave to appeal to the CA out of time, on top of the usual 4 sets.

5.  Under the policy currently adopted by the Director, on-going judicial proceedings related to non-refoulement claims are an impediment for effecting deportation.  Thus, an unsuccessful non-refoulement claimant would not be deported when there is an outstanding appeal of his or her case.

6.  One might think that an ultimate dismissal from the CFA would eventually remove the legal impediment to the claimant’s deportation.  This is not the case.  Since the Government’s non-refoulement obligation is a continuous one, an unsuccessful claimant could raise a subsequent claim after the original claim has been finally determined, if there is a substantial change of circumstances.

7.  To prevent abuse by groundless subsequent claims, section 37ZO of the Immigration Ordinance Cap 115 was enacted which provides that a claimant must not raise a subsequent claim unless the Director is satisfied that there is sufficient evidence in writing of a significant change of circumstances which, together with the materials previously provided, would give the subsequent claim a realistic prospect of success.  The Director’s refusal to allow a subsequent claim is not appealable to the Board.  However, this is not the end of the matter.

8.  The claimant could seek leave to challenge the Director’s refusal of the subsequent claim request, by way of judicial review in the Court.  Thus, a “new” legal impediment will emerge to prevent the Director from effecting removal.  As one can readily see at this point, subsequent claim could function as an abusive portal to an endless loop of judicial review applications from CFI all the way up to the CFA.

9.  The Defendant in the present case has undertaken the typical course of litigation proceedings as outlined above.  This application is the Director’s attempt to cut short the loop.

10.  The Director was represented by Ms Karen Ngai, Acting Senior Government Counsel.  The Defendant attended the hearing in person and was assisted by an interpreter.  The Defendant did not file any written submissions to resist the Director’s application. Judgment was reserved at the conclusion of the hearing.  This is the Judgment.

B.      The Law on a Section 27 Application

11.  The legal principles on an application under section 27 have been recently visited by Chow JA (sitting as a CFI Judge) in Director of Immigration v Etik Iswanti [2021] HKCFI 1589 at §§31-35.  Chow JA’s judgment could be read in full.  It suffices to offer a brief summary below.

12.  Section 27 stipulates 3 statutory conditions which must be satisfied before the Court makes an order under the section:

(1)   the application is made by the Secretary for Justice or an affected person;

(2)   the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(3)   the Court has heard the person against whom the order is sought or has given him an opportunity of being heard.

13.  The meaning of “habitually and persistently and without any reasonable ground instituted vexatious legal proceedings” in the second condition was explored by Chow JA at §35:

(1)   The concept of “habitually and persistently” involves an element of repetition.  But the repetitions do not have to occur over a long period of time.  Nor is the fact that the number of separate actions are quite small a bar to the finding of habitual and persistent repetition.  It is sufficient if the repetitious conduct, viewed in the whole circumstances, demonstrates an attempt to re-litigate an issue already conclusively determined.

(2)   “Vexatious” legal proceedings come in many different forms or variants.

(3)   Proceedings could be regarded as vexatious if they disclose no reasonable cause of action, are an abuse of the court process, are so obviously untenable or manifestly groundless as to be utterly hopeless or have little or no basis in law.  The fact that proceedings are struck out by the court is good evidence of their vexatious nature.

(4)   Proceedings could also be regarded as “vexatious” if they are brought for collateral purposes.  These include calculated attempts by a defendant to delay an inevitable judgment or its execution.

(5)   Proceedings demonstrating a refusal to accept the unfavourable final result of litigation, and which are brought to re-open such matters finally determined, are also example of vexations proceedings.

(6)   Ordinarily, the vexatious nature of such proceedings should be apparent from reading the reasoned judgments and orders made in those proceedings.  It is not necessary to refer to the pleadings or other documents in those proceedings.

14.  A section 27 order encroaches on a person’s right to access the court, but that right is not absolute.  Persons who habitually and persistently institute vexations legal proceedings have unfairly taken up a disproportionally large amount of judicial resources which would affect other people’s right to access the courts.  A section 27 order is also not an absolute ban on access to court, and leave will be granted by the Court if the proceedings to be instituted are meritorious.

C.      The Defendant’s Litigation Conduct

15.  The Defendant is a Bangladeshi national.  He has been illegally staying in Hong Kong since 2009.  He raised his non-refoulement claim in February 2010.  His claim is based on risks from the members and supporters of the Awami League for the Defendant’s involvement in the murder of one of their members.

16.  The claim was rejected by the Director by two decisions issued in 2015 and 2017.  He appealed to the Board, which rejected the claim on 8 November 2017.  The Board found that the general credibility of the Defendant had been damaged to such an extent that no weight could be attached to his evidence in relation to the events which he said he witnessed in Bangladesh before he departed for China.

17.  The Defendant sought leave to apply for judicial review to challenge the Board’s decision in HCAL 915/2017. The Defendant provided 6 proposed grounds of review which are quoted in §§12-13 of the Judgment:

(1)   that the Board had unlawfully fettered its decision by refusing his appeal on the ground that it did not satisfy the requirement;

(2)   that the adjudicator acted procedurally unfair in dealing with his appeal;

(3)   that the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)   that the Board failed to apply high standards of fairness owed to a self-represented claimant;

(5)   that he was given the hearing bundle for his appeal to the Board only six days before the hearing and therefore insufficient time for him to prepare and to find an interpreter to assist him in his appeal;

(6)   that the Board has significantly relied on source of news not officially recognized or were merely hearsay or outdated resulting in its groundless speculation of his safe return to Bangladesh.

18.  Deputy High Court Judge Bruno Chan refused to grant leave on all proposed grounds (see §§12-19 of the Judgment).  Grounds (1) to (4) and (6) are broad and vague statements unsupported by any particulars or specifics.

19.  Ground 5 was also rejected because most of the bundle documents were prepared by him or on his behalf with the benefit of legal representation from the Duty Lawyer Service.  He was also assisted by an interpreter in the oral hearing before the Board during which no complaint was raised regarding the lack of time for preparation or any language assistance.

20.  Then, the Defendant sought leave to appeal to the CA out of time: see [2018] HKCA 868.  The Defendant failed to lodge written submissions as directed by the Court and his appeal was thus heard on paper.  The application was quickly dismissed on 14 December 2018, because:

(1)   The Defendant was late for more than 1 month without any explanation.

(2)   He did not include any draft notice of appeal in his documents but only made a “general contention that he was not satisfied with the Judge’s decision and voiced out his fear of danger to his life if refouled”.  The complaints are “without substance and devoid of merits”.  The intended appeal “is doomed to fail” and no extension of time should be given to the applicant to bring “a hopeless appeal”.

21.  The Defendant then sought leave from CA to appeal to CFA by Notice of Motion dated 31 December 2018: see [2019] HKCA 140. He set out 2 grounds related to the “decision maker’s” use of COI, quoted in §3 of the Judgment:

(i)     There were errors of law in the decisions against him and the decision makers just relied on the Country of Origin Information (“COI”) and the factual information which were against him in order to reject his claim.

(ii)    The actual life in Bangladesh was different from what was mentioned the COI and the Bangladeshi officers and courts preferred to ignore the overwhelming evidence of violence towards minorities. Thus, the decisions to reject his claim were biased, formulated and calculated.

22.  He also filed written submissions which reiterated the basis of his non-refoulement claim.  The CA dismissed the application in two short paragraphs (§§6-7). There was no reasonably arguable basis that the application raised questions of great general or public important nor should it be referred to the CFA otherwise.

23.  The Defendant then applied to renew his application for leave to the CFA in FAMV 94/2019. The application was eventually dismissed by the Appeal Committee for disclosing no reasonable grounds for appeal on 10 July 2020, under Rule 7 of the Hong Kong Court of Final Appeal Rules Cap 484.

24.  After his non-refoulement claim was finally determined by the CFA, he requested to make a subsequent claim 20 days later, i.e. on 27 July 2020.  The subsequent claim was based broadly on the same set of facts with the additional information of some incidents which allegedly happened in 2018 after the Awami League won the election that year.  No supporting evidence was provided to substantiate the newly alleged incidents.  The incidents were hearsay, which was said to be imparted by a friend.  By decision dated 4 February 2021, the Director refused to allow the Defendant to make a subsequent claim on the basis that the new information does not constitute a significant change of circumstances which would give the intended claim a realistic prospect of success.

25.  On 24 February 2021, the Defendant filed a Form 86 in HCAL 220/2021 to challenge the subsequent claim decision.  The Form 86 does not identity the relief sought nor the grounds of review.  It is one-page document barely sufficient to get the form filed at and the action issued by the High Court Registry.

D.      Whether to Grant Order

26.  At the hearing, the Defendant reiterated his non-refoulement claim – that the situation in his home country was still favourable for his return and he needed to stay in Hong Kong for some more time.  I clarified that the present application does not concern his non-refoulement claim, but an order that he should be prohibited from bringing legal proceedings in relation to his non-refoulement.  He said that if he is disallowed from instituting legal proceedings then he does not know how he can stay in Hong Kong for one more year.  He did not make further submissions on the present application.

27.  In any event, I have considered all the materials before the Court and come to the conclusion that the 3 statutory conditions required by section 27 are all satisfied.

28.  The application is made by the Director who is clearly an affected person and the Defendant did attend the hearing.  The first and the third statutory conditions are satisfied.

29.  I have no doubt that the second statutory condition – that the Defendant has habitually and persistently instituted vexatious legal proceedings – is also satisfied.  The following stands out from his litigation conduct:

(1)   All but one ground advanced in the CFI level are vague and very general assertions, without any particulars or elaboration on how they apply to the decision the subject of the review/appeal.

(2)   The ground criticizing the Board/decision-maker’s use of COI was advanced in both the CFI and the CA level, when no reference to COI was made in the Board’s decision.

(3)   As can be seen from the judgment from CFI to CFA, none of the courts considered that any of the grounds raised by the Defendant was capable of serious argument.

(4)   The subsequent claim raised in July 2020 relied on the substantially the same sets of materials which had been rejected all the way up to CFA.

(5)   The Form 86 for the latest judicial review leave application is a single page document which does not identify either the grounds or the relief sought.

30.  Whilst care was given by the Defendant to ensure that the right forms were filled in and filed with the Court Registrar to ensure that his case could advance level by level in the appellate court system, there was no equal measure in the care given to the formulation of his grounds for review/appeal.  The grounds were often so general and vague that they looked like templates for non-refoulement cases.  Judges at different levels of the courts had no difficulties in quickly disposing of them.  I have no difficulty in finding that the Defendant has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.

31.  There is sufficient evidence to show that the Defendant has habitually and persistently instituted vexations proceedings which are manifestly groundless, clearly untenable and with the purpose of delaying his deportation.

32.  Indeed, the Defendant’s oral submissions at the hearing on 30 December 2021 added strength to the Director’s submissions that he has been instituting judicial proceedings for the purpose of delaying his deportation from Hong Kong.  He said he does not know how to stay in Hong Kong if he is not allowed to file more court actions.  This is perhaps a Freudian slip reflecting his true understanding about the proceedings – simply as a tool to prolong his stay in Hong Kong.

E.      Conclusion

33.  The Director’s application for a section 27 order against the Defendant is allowed in the following terms:

(1)   No legal proceedings relating to any non-refoulement claim of the Defendant shall be instituted by him without leave of the CFI;

(2)   All legal proceedings relating to any non-refoulement claim of the Defendant previously instituted by him (including but not limited to HCAL 220/2021) before the making of this Order shall be continued by him without the leave of the CFI;

(3)   Any application by the Defendant for leave to institute or continue legal proceedings relating to any non-refoulement claim of the Defendant under Order 32A, rule 2 of the Rules of the High Court, Cap 4A, shall be made to 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;

(4)   No more than 1 application under Order 32A, rule 2 of the Rules of the High Court may be made by the Defendant within any period of 3 months;

(5)   This Order shall cease to have effect at the end of 5 years from the date of this order; and

(6)   A copy of this Order shall be sent to the High Court Registry, the District Court Registry, and the Small Claims Tribunal Registry.

34.  Ms Ngai also asks for the costs of the Director to be paid by the Defendant.  The Defendant is currently not permitted to work as a non-refoulement claimant.  He submitted that he should not be asked to pay the Director’s costs in the event that he lost.  However, if necessary, he was willing pay by monthly instalment of HK$500 per month which would be sent over to him from Bangladesh or by some other means.

35.  I see no reason why the costs should not follow the event.  The lack of means should not be an absolute shield from the financial consequence of pursing hopeless cases.  Indeed, in the present context, it is all the more important to bring home the message that habitually and persistently instituting vexation litigations would be met with appropriate costs orders.  I order the Defendant to pay the Director costs, summarily assessed at HK$30,000.