NOWODZELSKI, STACEY ALAN v. DIRECTOR OF IMMIGRATION & ASSISTANT DIRECTOR OF IMMIGRATION

CACV 286 /2017

[2018] HKCA 618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2017

(ON APPEAL FROM HCA NO 393 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

Introduction

1.  On 20 February 2017, the plaintiff, Stacey Alan Nowodzelski, issued a writ against the Director of Immigration (“the Director”) and an Assistant Director of Immigration, for refusing his application for Verification of Eligibility for Permanent Identity Card (“VEPIC”) by a letter dated 1 February 2017 and for making a Removal Order against him dated 7 February 2017 requiring him to leave Hong Kong.

2.  He made these claims in his statement of claim of the same date:

“(1) To challenge the validity of the Removal Order and seek exemplary damages.  He claimed that the Director has continued to pursue prosecuting and punishing him, thereby breaching Article 11(6) of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the BORO claim”);

(2) To seek aggravated damages for prejudicial treatment by the Director.  He alleged that the Director refused to accept him as a “stateless person” and did not approve his application for naturalization as a Chinese national. It was in disregard of the law and “with absolute prejudice caused immense stress on the plaintiff” (“the claim in prejudicial treatment”); and

(3) To seek damages for libel.  The plaintiff averred that the statements contained in the Director’s letter dated 1 February 2017 and the Removal Order stating that the plaintiff has contravened a condition of stay were defamatory. When the appeal for right of abode and against the Removal Order were publicly listed for hearing, the plaintiff averred that his relatives, friends outside his immediate family, and other immigration officers would look down upon him as a criminal (“the libel claim”).”[1]

3.  In addition to these pleaded claims, the plaintiff indicated in the court below that he has a claim against the Director for having contravened section 5 of the Family Status Discrimination Ordinance, Cap 527.  He alleged that the Director directly discriminated against him by denying and ignoring his efforts to submit an application for a dependant visa[2] (“the family status discrimination claim”).

4.  Master S Lo ordered on 14 September 2017 that the statement of claim be struck out and this action be dismissed on the grounds that it discloses no reasonable cause of action, is frivolous and vexatious, and an abuse of the process of the court.

5.  The plaintiff appealed against the master’s decision.  His appeal was dismissed by Au‑Yeung J on 5 December 2017.  This is his further appeal to the Court of Appeal.

Background

6.  The relevant background matters may be stated as follows.

7.  The plaintiff was born in the United States of America in 1966.  He first arrived in Hong Kong on 21 December 2007 on the strength of his United States passport and was permitted to remain for employment with limit of stay for one year.  Subject to the same immigration status, his limit of stay was last extended until 5 January 2010.  From 6 January 2010 to 28 June 2010, he travelled in and out of Hong Kong as a visitor.  He last arrived in Hong Kong on 28 June 2010 as a visitor with limit of stay granted till 26 September 2010.  He did not leave Hong Kong and has overstayed since 27 September 2010.

8.  On 2 July 2010, the Consulate General of the United States of America in Hong Kong wrote to the plaintiff informing him that it has denied his application for additional visa pages and cancelled his passport issued to him in 2003.  It stated that the denial of passport services in no way affects his eligibility to be documented for direct and immediate return to the United States and he should contact the office of the Consulate General if he should desire such documentation.

9.  On 8 April 2016, the Consulate General certified that the plaintiff is a United States citizen, his passport had expired in 2003, he does not currently hold any valid or invalid United States passport, and if he resolves his immigration status with the Hong Kong Immigration Department, the Consulate General will issue him a replacement passport for his immediate return to the United States.

10.  On 12 April 2016, the plaintiff was charged by the Immigration Department with the offence of breach of condition of stay contrary to section 41 of the Immigration Ordinance, Cap 115.  He was convicted by a magistrate on 2 November 2016 but the conviction was set aside by the magistrate on review on 22 November 2016, on the ground that he did not have the mens rea to overstay and had been staying in Hong Kong involuntarily.

11.  The plaintiff applied for VEPIC on 19 January 2017.  As mentioned earlier, this was refused by the Director on 1 February 2017, on the ground that he had not ordinarily resided in Hong Kong for a continuous period of not less than seven years immediately before the date when he applied for the status of permanent resident.  The Removal Order on 7 February 2017 was made on the ground that he is contravening or has contravened a condition of stay, under section 19(1)(b)(ii) of Cap 115.

12.  On 14 February 2017, he lodged an appeal to the Immigration Tribunal against the Removal Order.  This was dismissed by the Immigration Tribunal on 2 March 2017.

13.  On 20 February 2017, he issued the writ in the present action (HCA 393/2017).  The basis of his claim is that he had been acquitted by a magistrate of the offence of breach of condition of stay, hence it is contrary to the rule of law and an abuse of executive power to punish him again for the same offence by making the Removal Order.

14.  On 3 March 2017, he submitted an application for a Hong Kong permanent identity card.  This was refused by the Commissioner of Registration on the same day.  He immediately lodged an appeal to the Registration of Persons Tribunal.  This appeal is pending determination[3].

15.  On 13 March 2017, the plaintiff filed a notice of application for leave to apply for judicial review to quash the Removal Order and the decision of the Immigration Tribunal dismissing his appeal against the Removal Order.  The Director was the putative respondent.  This is HCAL 73/2017.  He relied on the fact that he had been acquitted of the offence of breach of condition of stay and hence had not contravened any condition of stay and he had entered Hong Kong legally.

16.  On 15 August 2017, Au J refused to give leave to apply for judicial review, on the grounds that he had failed to show any reasonably arguable case he had the right to remain in Hong Kong, or that he had satisfied the legal requirements for the right of abode in Hong Kong, or that he had been given lawful permission by the Director to remain in Hong Kong after the expiry of his limit of stay on 26 September 2010.  Au J held the mere fact that he was acquitted of the offence under section 41 did not show or prove that he had any arguable lawful right to remain in Hong Kong since 27 September 2010.

17.  The plaintiff appealed against Au J’s decision.  The Court of Appeal dismissed his appeal on 4 June 2018 ([2018] HKCA 295).  He sought leave to appeal to the Court of Final Appeal.  Leave to appeal was refused by the Court of Appeal in a decision handed down on 24 August 2018 ([2018] HKCA 548).

This appeal

18.  In this appeal against the judgment of Au‑Yeung J, the plaintiff advanced a number of grounds in his notice of appeal filed on 15 December 2017.  In his skeleton argument filed on 10 August 2018, he made other submissions which have no apparent connection with his grounds of appeal. We also heard his oral submissions.  For the reasons given in the next section of this judgment, we do not find it necessary to deal with his grounds of appeal and submissions except for one matter mentioned below.

19.  He alleged in his grounds of appeal and submitted that the judge was not independent or impartial in that she “collaborated” with defence counsel Ms Vienne Luk in reaching the judgment, as allegedly borne out by §44 in which the judge “[thanked] Ms Luk for her assistance”.  He contended this paragraph indicated that the judge had allowed the Department of Justice “to put a thumb on the scales of justice” and this is a travesty of justice.  There is no basis whatsoever for this allegation.  The mere fact that a judge, after receiving submissions from the parties, had accepted the arguments advanced by one party and thanked counsel out of common courtesy for the assistance rendered to the court cannot be support for any allegation of actual or apparent bias.  And if a judgment were open to attack on this basis, it would be impossible for a judge to determine whether the submissions of any party or none of the parties should be accepted.

Issue estoppel and abuse of process

20.  Au‑Yeung J alluded to re‑litigation of the BORO claim and the claim in prejudicial treatment in §§24 to 27 and 32 of her judgment in that these allegations had been litigated in the proceedings for judicial review.  Since the handing down of her judgment, the Court of Appeal has given its judgment in the appeal against Au J’s decision.  It is apparent from the Court of Appeal judgment that the relevant issues raised in support of all four claims advanced in this action are the same as those raised in the application for leave for judicial review and its appeal.  Those issues have now been determined with finality by the Court of Appeal.  And the parties to the two sets of proceedings are the same.

21.  As explained by Lord Keith in Arnold v NatWest Bank Plc [1991] 2 AC 93 at 105E, issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant.

22.  In the judicial review proceedings, the plaintiff raised these issues as his substantive grounds of appeal:

“(1) He has not breached any condition of stay as shown by his acquittal of the Section 41 Offence.

(2) He has been ordinarily resident in Hong Kong for over 7 years being the period required to become a Hong Kong permanent resident.

(3) He is a “stateless person” under the 1954 UN Convention Relating to the Status of Stateless Persons and should be “naturalized” under Article 32 of that treaty.

(4) He is lawfully married to a Hong Kong permanent resident, but his repeated attempts to submit an application for a dependant visa was ignored by the Director, contrary to Sections 5 and 6 of the Family Status Discrimination Ordinance, Cap 527.”[4]

23.  In respect of ground (1), the Court of Appeal ruled that the Director was lawfully entitled to make the Removal Order based on section 19(1)(b)(ii).  For the purpose of making a removal order under this provision, it does not follow that a person who has overstayed in Hong Kong but lacks the necessary mens rea for the offence under section 41 should be regarded as not having contravened a condition of stay in respect of him, as it is the clear legislative intent of section 19(1)(b)(ii) that a person is liable to be removed from Hong Kong if he has, as a matter of fact and law, no further right to remain in Hong Kong after the expiry of the limit of stay granted to him by the Director, even if his continued presence in Hong Kong may be said to be “involuntary” in some sense.  Even assuming that the plaintiff was unable to obtain the necessary documentation to enable his return to the United States, it remains the case that he has overstayed in Hong Kong since 27 September 2010 and thus is contravening or has contravened a condition of stay in respect of him.  There can be no doubt he has had no right to remain in Hong Kong after the expiry of his limit of stay on 26 September 2010, as he is not entitled to be regarded as a Hong Kong permanent resident for the reasons in ground (2).[5]

24.  In respect of ground (2), the Court of Appeal held as the plaintiff has had no lawful right to stay in Hong Kong after the expiry of his limit of stay on 26 September 2010, he cannot rely on his unlawful residence as constituting ordinary residence.  Since his VEPIC application has not been approved by the Director, he does not have the status of a permanent resident in Hong Kong even if he has otherwise satisfied all the requirements under paragraph 2(d) of Schedule 1 to Cap 115.  Hence he does not have the status of a Hong Kong permanent resident[6].

25.  As for ground (3), the Court of Appeal held that the bare allegation that the plaintiff is a stateless person cannot give rise to any reasonably arguable basis to challenge the Removal Order or the decision of the Immigration Tribunal.  Paragraph 2705 of Title 22 Foreign Relations and Intercourse of the United States Code does not purport to state that the cancellation of a passport is proof of revocation of United States citizenship. The 1954 UN Convention cannot give rise to any enforceable rights in favour of the plaintiff in the courts of Hong Kong.  Even if he is a stateless person as defined in the 1954 UN Convention, it is for him to apply to be naturalized pursuant to Article 7 of the Nationality Law of the People’s Republic of China. There is no evidence he has made any such application and still less that such application has been accepted[7].

26.  On ground (4), the Court of Appeal held that the reliance on sections 5 and 6 of the Family Status Discrimination Ordinance is plainly misconceived as the plaintiff’s allegation, even if established, does not begin to show he was discriminated against because of his family status under section 5, or that he was victimized on any of the grounds referred to in section 6.  Further, it does not follow from the fact that a person has made a dependant visa application that a removal order cannot be made against him under section 19 of Cap 115.  And the fact that the plaintiff is married to a Hong Kong permanent resident does not give him any right to stay in Hong Kong under Article 37 of the Basic Law[8].

27.  The above issues raised and determined in the judicial review proceedings clearly form necessary ingredients of each of the four heads of claim made by the plaintiff in this action.

28.  The underlying contention of the BORO claim is the challenge to the validity of the Removal Order, which is said to be in breach of Article 11(6) of the Hong Kong Bill of Rights in that the plaintiff had been acquitted of the offence under section 41 but was punished again for having breached a condition of stay by the Removal Order.

29.  The claim in prejudicial treatment is premised on assertions that the plaintiff had not contravened any condition of stay, that he had been ordinarily resident in Hong Kong since his first arrival in 2007, that he is a stateless person under the 1954 UN Convention and his application to be naturalized as a Chinese national under the Nationality Law of the PRC should be approved.

30.  The libel claim is based on the allegation that the Removal Order, the Summary of Facts and Reasons for Removal and the Notice of Removal Order contained false statements that the plaintiff “is contravening or has contravened a condition of stay” and hence defamatory of the plaintiff.

31.  The family status discrimination claim is based on the allegation that the Director had denied and ignored the plaintiff’s efforts in applying for a dependant visa by the Removal Order issued by the Director.

32.  All the above issues and contentions made in support of the four heads of claim have been determined against the plaintiff earlier in the proceedings for judicial review.  The plaintiff has not contended otherwise.

33.  The plaintiff argued however that no estoppel should apply.  He submitted that the present civil action and the proceedings for judicial review are totally different and not cases in parallel, in that the present action is concerned with the rule of law and the abuse of executive power whereas the judicial review proceedings are directed towards the quashing of the removal order.  He also made the point that he claims damages in the civil action and very different relief was sought in the judicial review proceedings.

34.  We reject his submissions.  What is plain in this instance is that the same issues are distinctly raised in the two sets of proceedings, they are supported by the same evidence and these issues have been clearly determined against the plaintiff with finality in the earlier proceedings for judicial review.  He is seeking to re-litigate the same issues all over again in the civil action.  In advancing arguments in the civil action contrary to the determination against him on various issues in the judgment of the Court of Appeal, he is mounting a collateral attack on that judgment.

35.  Two facets of public interest are thus engaged.  The first relevant public interest is finality in litigation.  As stated by Chan PJ in Chau Cheuk Yin v Poon Kit Sang (2012) 15 HKCFAR 460 at §55, “the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances”, and “where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable”.  See also Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462 §7.  Both cases were cited in Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478, see the discussion in the judgment of Lam VP on the importance of the finality principle in §§31 to 34.  We have fully considered the plaintiff’s submissions, including the personal circumstances he urged upon us in his skeleton argument.  There is nothing here to make out a case of exceptional circumstances to outweigh the finality principle.

36.  The second relevant public interest is the principle of abuse of process by which a court will not countenance the pursuit of an action which amounted to a collateral attack on an earlier decision of a court of competent jurisdiction binding on the same parties and their privies, as this would bring the administration of justice into disrepute (Ho Kin Man v Commissioner of Police, §§35 to 39).

37.  It is not material that the form and nature of the proceedings, the claims and remedies sought in the two sets of proceedings brought by the plaintiff are different.  It was held in Ho Kin Man at §28 that the difference in the remedies sought in the two sets of proceedings (in Ho Kin Man it was certiorari in the first set of proceedings for judicial review and damages in the subsequent writ actions) is not of much relevance in the overall assessment as to whether the subsequent civil claims are abuses of the process.  Leave to appeal to the Court of Final Appeal was refused by the Appeal Committee (FAMV Nos 58 to 61/2014, 25 August 2015, §7).

38.  For this appeal, it matters not whether we apply issue estoppel as an absolute bar to further litigation, or whether we exercise our discretion to strike out the proceedings as an abuse of process by conducting a broad merits‑based assessment as in Ho Kin Man in weighing and balancing the competing interests.  The outcome is the same.  If issue estoppel applies, in the subsequent proceedings the plaintiff is estopped from re‑litigating the issues distinctly raised and clearly determined against him in the earlier proceedings by repeating his arguments or advancing new arguments.  If we approach this on the basis of a broad merits‑based assessment, we balance the private interest of the plaintiff to have legal redress for the alleged abuse of executive power regarding the Removal Order made against him, and the competing public interests we have identified.  We have no doubt that the balance firmly comes down in favour of upholding the public interests and would exercise our discretion to strike out the civil claim, as the master and the judge had done.

39.  For all the above reasons, we decline to be drawn into the arguments advanced by the plaintiff in seeking to attack the rulings made against him in the judicial review proceedings on various issues, which form the basis of his claims in the civil action.  We therefore dismiss the plaintiff’s appeal.

40.  There is no reason to depart from the general rule that costs should follow the event.  We make an order nisi that the plaintiff is to pay the defendants’ costs of this appeal, to be taxed if not agreed.