DIRECTOR OF IMMIGRATION v. KHAN MOHAMMAD SHADAB

HCMP 1552/2021

[2022] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1552 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’ 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 Gilbert Mok, Senior Government Counsel (Ag.).  The Defendant attended the hearing in person.  Judgement 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:

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

(b)  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

(c)  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 Muslim.  He claims that he fell in love with a girl who is a Hindu in 2012; the girl’s family deeply disproved of the relationship; the girl’s father and brother assaulted the Defendant and threatened to kill him.  The Defendant eventually sought shelter in Hong Kong in 2014.

10.  The claim was rejected by the Director in 2016 and 2017 in 2 decisions.  The Defendant appealed to the Board.  The Defendant failed to attend the Board hearing at the scheduled date and did not provide any explanation for his absence.  The Board hearing thus proceeded in the Defendant’s absence.  By a decision dated 7 July 2017, the Board rejected the Defendant’s claim.  The Board found the Defendant’s account of events to be incredible.  But even assuming the Defendant’s case to be true, the Board found that the girlfriend’s father and brother would not pose any of the requisite risks.  Even if such risks existed, they would be localised and the Defendant could safely relocate to another city.

11.  In HCAL 625/2017, the Defendant sought leave to apply for judicial review to challenge the Board’s decision.  Campbell-Moffat J analysed all the intended grounds of review raised and rejected each of them as follows:

10. The Applicant complains that:

i. He did not receive any invitation letter by which the Director asked for additional facts or grounds.  I presume that the Applicant is referring to the appellate procedure as he had the opportunity to be heard before the Director and was represented at that time.  He was thereafter represented in preparing his grounds of appeal.  If he did not receive further correspondence, then he could not have been living at the address he was required to live at and he does not submit that he had changed address at any time.  In any event, the Applicant does not say in what way he would have wished to add to what was a simple set of facts fully aired before the Director and fully recorded.  The Applicant is not further assisted by the fact that he wholly failed to correspond with the TCAB once he had submitted his grounds of appeal.

ii. The Adjudicator relied upon the COI information and previous facts which supported rejection of his claim.  As to his second ground of review, the Adjudicator was left with no choice but to deal with the matter on the papers having done everything procedurally, which could be done to give the Applicant an opportunity to attend and be heard.  Nevertheless, the Adjudicator considered the Applicant’s case at its highest, giving him the benefit of the doubt but did not find that a case had been made out when applying the legal principles to the facts presented in the best possible light for the Applicant.

iii. The Adjudicator was biased.  As to the third ground of review, the Applicant does not say in what way the Adjudicator was biased.  A thorough reading of the Decision suggests that the Adjudicator bent over backwards to be fair to the Applicant despite his initial view that the Applicant’s claim was incredible. The fact that he had only the papers in the case to rely upon is to be laid at the door of the Applicant.

iv. The Adjudicator employed a formulaic approach resulting in an unfair assessment of the danger to the Applicant’s life.  As to the fourth ground of review, there is inevitably some degree of formula to the application of legal principles to facts in each case.  However, the Adjudicator outlined those legal principles and then applied them to the facts peculiar to the Applicant’s case and there was nothing formulaic in the manner in which he did so.  There is no question but that the Adjudicator applied an independent and objective approach specific to the Applicant’s case.

v. Refused the appeal without an oral hearing.  As for the failure to be given an oral hearing, the Applicant failed to attend on the given date.  A notice pursuant to section 15 of schedule 1A of the Immigration Ordinance, Cap 115 and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme was served upon the Applicant by registered post indicating the TCAB’s intention to determine his appeal in his absence.  He was afforded seven days in which to provide a written explanation of his failure to attend.  He did not do so.  No other contact was made by the Applicant with the Board.  The Applicant has not sought to indicate an answer to that in his grounds of review.  The Applicant bears a responsibility to reside where indicated in his recognisance. Proper notice was served upon that address.  There is nothing within the grounds of review which explains why the relevant documentation would not have reached the Applicant given that he clearly received the Notice of Decision dated 7 July 2017 sent to the same address.  There is no inalienable right to an oral hearing. Much will depend upon the particular circumstances of the claim and of the facts submitted.  The Adjudicator applied the procedural guidelines fairly and in dealing with the matter on the papers gave every benefit to the Applicant which could be afforded to him.  Nevertheless, his claim did not establish the level of risk required.

12.  By summons filed on 25 May 2018, the Defendant sought leave to appeal to the CA out of time in CAMP 75/2018.  The Defendant did not lodge any written submissions despite being directed twice by the Registrar of Civil Appeal.  Nor did he provide any reasons for the two-month delay.  The CA considered that the intended appeal had no prospect of success, saying:

13. In his supporting affirmation filed on 25 May 2018, the applicant gave the following grounds of appeal:

(1) The Judge was wrong in law in holding that there was no state acquiescence or involvement;

(2) The Judge failed to provide detailed reason in support of her decision; and

(3) The sealed order dated 16 March 2018 stated that the order was made “upon hearing the Applicant appearing in person”.  That was wrong because the Judge made the order based on documents only without a hearing.

14. Ground (1) is misplaced.  Contrary to the applicant’s assertion, the Judge had made no reference to, let alone finding or ruling on, state acquiescence or involvement.

15. Ground (2) is unarguable in light of the detailed reasons provided by the Judge in the Form CALL-1.

16. As to Ground (3), it is correct that the sealed order contains a clerical error.  The error however does not impinge on the validity of the reasons and the decision given by the Judge.  It is also clear from [2] of the Form CALL-1 that the applicant did not request an oral hearing and his application was considered on papers only.

13.  The Defendant then sought leave from the CA to appeal to the CFA.  In [2019] HKCA 129, the CA dismissed all the grounds of appeal (quoted in judgment) as they do not raise any question of great general or public importance or which should otherwise be referred to the CFA.

14.  The Defendant then applied to renew his application for leave to the CFA in FAMV 87/2019.  The application was eventually, on 6 January 2020, dismissed by the Appeal Committee for disclosing no reasonable grounds for appeal.

15.  As said, the Defendant then lodged a subsequent claim in June 2020.  The additional information was that his girlfriend committed suicide in 2018 which had made her family angrier with him.  By a decision dated 7 July 2020, the Director refused the Defendant’s request.

16.  On 22 July 2020, the Defendant filed a Form 86 in HCAL 1577/2020 to challenge the subsequent claim decision.

D.      Whether to Grant Order

17.  The Defendant did not file any written submissions to resist the Director’s application.  At the oral hearing, he said that he needed more time to collect evidence.  However, when asked, he did not explain to what aspect the evidence would go.  But he did confirm that the evidence relates to his non-refoulement claim.

18.  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 under section 27 are satisfied.

19.  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) The Defendant failed to attend the Board hearing and did not provide an explanation upon request.

(2) He failed to file written submissions despite being requested twice to do so by the Registrar of Civil Appeal.

(3) The “grounds” he has provided in the proceedings are often broad and vague assertions without any particulars or elaboration on how they apply to the decision the subject of the review/appeal.

(4) Some of the grounds he relied on clearly have no application whatsoever to the decisions/judgments under appeal, eg. the State acquiescence ground raised in CAMP 75/2018 ([2018] HKCA 897) when the CFI judgment below made no reference to State acquiescence.

(5) 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.

(6) Not only that, the subsequent claim raised in June 2020 relied on the substantially the same sets of facts which had been rejected all the way up to CFA, and the alleged new information was an event said to have happened in 2018 but raised only as new information after his original claim was finally rejected by the CFA.

(7) In the latest judicial review leave application against the subsequent claim decision, no proper grounds are identified.

20.  The Defendant’s failure to attend the Board hearing without explanation, the failure to comply with court directions in failing the written submissions and the apparently very little thoughts given to the formulation of his grounds of review/appeal throughout all the proceedings are at odd with someone with strong conviction in his case and determined to seek justice in the Court.  This tends to show that he had little concern in the result of proceedings, and instead just wishes to draw them out.

21.  Indeed, his request at the hearing on 30 December 2021 to file more evidence (but being unable to give any particulars of the evidence to be filed) appears to be yet a further attempt to delay the judicial proceedings.  The fact that the “new information” he raised in his 2020 subsequent claim was an event which occurred in 2018 also casts serious doubt in his motive in raising the subsequent claim.

22.  I have no difficulty in finding that the Defendant has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.  There is also sufficient evidence to show that those proceedings were motivated by the purpose of delaying his deportation and an obstinate refusal to take “No” for an answer.

E.      Conclusion

23.  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 1577/2020) 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.

24.  Mr Mok 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.  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 vexation litigations would be met with appropriate costs orders.  I see no reason why the costs should not follow the event.  The costs are summarily assessed at HK$30,000.