DIRECTOR OF IMMIGRATION v. HUSSAIN RAFAQAT

HCMP 1626/2021

[2022] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1626 OF 2021

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D E C I S I O N

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A. Introduction

1.  The Director’s application is made 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’ attempt 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 (“the Board”) by way of judicial review.

3.  In [2022] HKCFI 197, handed down at the same time as this Judgment, I have rehearsed at §§3-8 the typical litigation history of these non-refoulement claimants against whom a section 27 order is sought.  This claimant has followed that usual track.

4.  The Director was represented by Mr Felix Lee.  The Defendant attended the hearing in person and was assisted by a court interpreter.  Judgment was reserved at the conclusion of the hearing, and this is the Judgment.

B.      The Law on a Section 27 Application

5.  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.

6.  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.

7.  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.

8.  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

9.  The Defendant is a Pakistan national who has been illegally staying in Hong Kong since 2011.  He sought non-refoulement protection 3 days after he was arrested as an illegal immigrant.  His claimed risk came from a land dispute he had with his uncle who had political connection with the Pakistan Muslim League (N) political party.

10.  The claim was originally only raised on the ground of torture risk and was rejected by the Director in 2011 and by the Board in the same year.  When non-refoulement protection was later expanded to cover other applicable grounds, the Defendant sought non-refoulement protection under the new mechanism.

11.  His claim was rejected by the Director in two decisions in 2016 and 2017 and then by the Board in 2017.  The Board did recognize that reliable sources of information suggested that there was a high prevalence of land disputes in Pakistan.  However, the Board did not believe the incidents which were said to have happened to the Defendant personally since “[it has] absolutely no doubt whatsoever that nothing the [Defendant] said can be given any credence at all and that he was not describing events in which he himself had participated”.  The Board concluded that the only fact the Defendant was able to establish was that he was a Pakistani male and rejected his claim by decision dated 9 November 2017.

12.  On 13 November 2017, the Defendant sought leave to apply for judicial review to challenge the Board’s decision in HCAL 878/2017.  The grounds put forward were summarized in §11 of the Judgment:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

13.  All grounds were rejected by the Deputy High Court Judge Bruno Chan (§13).  All grounds advanced were broad and general assertions without any particulars or elaborations on how they applied to the Board’s decision.  Given that the Board rejected the Defendant’s claim on his credibility, the complaints related to the COI, state protection or human rights violation were pointless.  It is of note that the Judge also made reference to and rejected a complaint about receiving the hearing bundle only 3 days before the hearing which was not listed as a ground in §11 of the Judgement (see §§14-15).  I am not privy to the documents at that stage but in any event the Defendant made no complaint on the point on his appeal to the CA.  Indeed, as seen below, somehow the Defendant raised a similar point when he sought leave from CA to appeal to CFA.

14.  On his appeal to the CA – see [2019] HKCA 157 – the Defendant made no reference to the CFI Judgment at all.  His grounds of appeal were quoted in §10 of the CA Judgment and it suffices to say that it is a repetition of the facts of his non-refoulement claim with no mention of the Board’s decision or the CFI Judgment.  As such, the CA dismissed the appeal since they did not see any valid grounds of appeal (§13).

15.  The Defendant then sought leave from the CA to appeal to the CFA in CACV 341/2018: see [2019] HKCA 439.  The grounds of appeal are quoted in §§3-4 of the Judgment:

3. The applicant stated in his Notice of Motion that:

“- The claims that the judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not made a complain of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle.  Rest of the grounds I will submit as soon as possible.”

4. In an affirmation filed on the same date, the applicant complained that the court was wrong to conclude there was no state acquiescence or involvement and had failed to find out details of the current situation in Pakistan.

16.  The CA refused to submit the intended appeal to the CFA since it raised no questions of great general public importance or which otherwise should be referred to the CFA.

17.  The Defendant then renewed his leave application for appeal to the CFA in FAMV 150/2019.  On 12 October 2020, the Appeal Committee dismissed the application on the ground that it disclosed no reasonable grounds for leave to appeal, under Rule 7 of the Hong Kong Court of Final Appeal Rules Cap 484.

18.  Just 9 days later, on 21 October 2020, the Defendant requested to file a subsequent claim.  The intended subsequent claim was based on the same set of facts with the additional information that the uncle and his sons still held grudges against the Defendant 10 years after the Defendant’s departure from Pakistan.  The Defendant’s family was also beaten up by the uncle and his sons in August 2020, as the Defendant was told by his sister.  By decision dated 3 November 2020, the Director disallowed the Defendant from making a subsequent claim.

19.  On 31 August 2020, the Defendant filed a Form 86 in HCAL 14/2021 to challenge the subsequent claim decision and another unknown decision said to be received by the Defendant on 5 November 2020. The Form 86 does not identity any grounds but states that “Please see the Affirmation Pages for rest of the grounds for Leave for Judicial Review.”

D.      Whether to Grant Order

20.  In the hearing on 31 December 2021, the Defendant said that whatever he said before was all correct and that he would be in danger if he was to return to Pakistan.  He also requested a lawyer from legal aid.  I explained to him that the present applicant concerned an order prohibiting him from instituting or continuing with court actions without prior approval from the Court.  He insisted that he wanted a lawyer to continue with his case.  He also said that he was suffering from high blood pressure. When I sought to further impress upon him the nature of the section 27 application, he replied that his case must be started and his claim must go on.  In Mr Lee’s reply submissions, he clarified that when the Director processed the Defendant’s subsequent claim request, the Defendant was assisted by legal representation assigned by the Duty Lawyer Scheme.

21.  The application is made by the Director who is an affected person in the meaning of section 27.  The Defendant attended the hearing in person and made submissions.  I am satisfied that the first and the third statutory conditions under section 27 are satisfied.

22.  The second statutory condition is also satisfied – that the Defendant has habitually and persistently instituted vexatious legal proceedings.  The following stands out from the Defendant’s litigation conduct:

(1)   The grounds advanced from CFI to his attempt to seek leave to CFA from CA are all broad and vague assertions without any elaboration on how they applied to the relevant decision the subject of review/appeal.

(2)   Complaints relating to COI, general human rights violations and the state acquiescence at the CFI level are clearly misplaced. The Board actually used COI in the Defendant’s favour since it recognized the prevalence of land disputes in Pakistan.  No state acquiescence was referred to in the Board’s decision.

(3)   On the appeal to the CA, the grounds were nothing but a repetition of the factual basis of the Defendant’s claim.  This suggests a lack of understanding of the CA’s function on the Defendant’s part and that he only saw the appeal as a further opportunity to re-argue his non-refoulement claim.

(4)   From the judgments and order made from CFI to CFA, it is clear that no court considered that the Defendant had identified any grounds capable of serious argument.

(5)   He requested to file a subsequent claim only 9 days after his claim was finally disposed of by the CFA, based on largely the same set of facts.

23.  The filling in and filing of forms with the Registrar, to enable the Defendant’s case to advance level by level in the appellate system, is in stark contrast to the little thought put into the identification of his grounds of review/appeal.  I have no difficulty in finding he has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.

24.  I also accept that, as the Director submitted, the Defendant instituted those proceedings for the collateral purpose of delaying his removal from Hong Kong.

25.  I am satisfied that all statutory conditions for making a section 27 order are fulfilled.

E.      Conclusion

26.  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 level 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 1626/2021) 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.

27.  Mr Lee 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 only had HK$1,200 per month as subsidy and on that sum he did not even have money to buy himself clothes.  But 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 vexatious litigations would be met with appropriate costs orders.  I see no reason why the costs should not follow the event.  I ordered costs for the Director summarily assessed at HK$25,000.