DIRECTOR OF IMMIGRATION v. BANSILES JAMAICHA BAGUINDO

HCMP 1473/2021

[2022] HKCFI 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1473 OF 2021

________________________

________________________

________________________

_________________

D E C I S I O N

_________________

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 (“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 Ms Joycelyn Ho, Government Counsel.  The Defendant was absent, but Ms Ho confirmed that all relevant materials for this hearing had been duly served on the Defendant and affirmations of services had been filed to prove that.  Satisfied of that, I proceeded with the hearing, at the conclusion of which Judgment was reserved.  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 Filipino national who first entered Hong Kong as a foreign domestic helper in 2006.  She did not leave Hong Kong upon the premature termination of her employment contract, and has been overstaying in Hong Kong since 2007.  She sought non-refoulement protection on the same day upon her arrest on 15 March 2009.  Her claimed risks come from two loan sharks in Philippines who would harm her for failing to repay her debts if she was to return.

10.  The claim was rejected by the Director in 2012. She appealed to the Board which rejected the claim in 2013.  She sought judicial review against the decision and her claim was remitted to the Director for fresh determination.  The Director rejected the claim again in 2016.  The Defendant appealed to the Board which also rejected the claim in 2017.  Whilst the Board found that the Defendant did take out the loans which were not repaid, it did not believe that the loan sharks had harmed the Defendant’s family as she said.  The Board on 3 November 2017 rejected the claim on the basis that the Defendant failed to prove any of the requisite risks upon her return.

11.  On 13 November 2017, the Defendant sought leave to apply for judicial review to challenge the Board’s decision in HCAL 871/2017.  The grounds put forward was summarized in §13 of the relevant Judgment were:

(a)  procedurally unfair on the part of the Board for failing to conduct an oral hearing and/or to give her sufficient time to present her claim under BOR 2 risk;

(b)  failure by both the Director and the Board to make full and proper inquiries of COI relevant to her case, being selective only in those in favor of the Immigration Department and rejecting or failing to consider properly or at all those produced by her;

(c)  error in law by both for failing to consider the concept of extended state acquiescence of the threats of torture by her creditors to her;

(d)  failure by the Board to properly and fairly assess the risks of harm to her on her return to the Philippines; and

(e)  procedurally unfair for the Board not to accept the evidence of a copy of the police report of the threats made to her parents in the Philippines.

12.  All grounds were rejected by Deputy Judge Bruno Chan (§§14-20).  Ground (a) was plainly wrong because the Defendant did attend the oral Board hearing.  Grounds (b) to Ground (d) are general assertions without particulars or elaborations to explain how they applied to the Defendant’s case.  For Ground (e), the Judge held that the Board was entitled to cast doubt over the document (said to be issued by a “Barangay police captain”) on the basis that it was written in English, did not bear any form of official letterhead or any distinguishing marks or seal.

13.  Then, the Defendant appealed the CFI Judgment to the CA out of time: see [2018] HKCA 641.  The grounds of appeal raised in the Notice of Appeal are quoted in §8 of the Judgment:

(1)  The applicant’s enemies are really politically influential and connected with the NPA.  In the Philippines, there is still no functioning judicial system and no reforms or means of redress that can really protect the citizens and ensure their safety.

(2)  There has been is a failure to consider the concept of extended acquiescence.

(3)  The Director and the Board cherry-picked the COI to support their conclusions.  The COI did not reflect the real situation, such as presence of domestic violence and lack of government protection.

(4)  The Barangay Captain Document is an original document, and is authentic.  It can prove the risk faced by the applicant upon being refouled to the Philippines.

14.  The CA rejected all the grounds as they are either challenges to the Board/Director’s findings of evidence, repetitions of the arguments which had been run before the CFI and/or irrelevant given that the Board rejected the claim on the basis of the Defendant’s lack of credibility (see §§11-13).

15.  The Defendant then sought leave from the CA to appeal to the CFA: see [2019] HKCA 838.  The Notice of Motion did not set out any question for the CFA’s determination but made complaints about the “decision maker’s” decision on her non-refoulement claim, as quoted at §5 of the Judgment:

(1)  The decision maker just relied on country of origin information (“COI”) and the applicant’s previous facts.  The actual situation is, however, different.

(2)  Overwhelming evidence of violence against minorities had been ignored.

(3)  The decision betrayed a biased and formulaic approach calculated to reject the claim.  There was no fair assessment of the danger to the applicant’s life.

16.  The CA refused to grant leave to appeal.  The Board did not consider any COI and there was no issue of violence against minorities in the Defendant’s claim.  There was no reason to submit the proposed appeal to the CFA (§§8-9).

17.  The Defendant then renewed her leave application for appeal to the CFA in FAMV 101/2018.  On 31 October 2019, 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.  About a week later, on 8 November 2019, she requested to file a subsequent claim.  She applied for extension of time on 11 occasions to submit further evidence in support of her request.  On the date of interview by the Director on 8 July 2020, she asked for a further 3 weeks pending delivery of documents form the Philippines.  She did not provide any documents upon the expiry of 3 weeks.

19.  The intended subsequent claim still concerned threats from the two loan sharks but with the additional information that the Defendant’s brother was tortured by the loan sharks.  She asked for time to submit a document in support but no such document was submitted after 6 months from the time when the document was first mentioned.  By decision dated 19 August 2020, the Director rejected her request.

20.  On 31 August 2020, the Defendant filed a Form 86 in HCAL 1746/2020 to challenge the subsequent claim decision and another unknown decision said to be received by the Defendant on 28 August 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

21.  The application is made by the Director who is clearly an affected person in the meaning of section 27.  Although the Defendant did not attend the hearing, I accept Ms Ho’s submissions that the Defendant had been properly served and she had the opportunity to be heard.  It was her choice not to make use of that opportunity.  I am satisfied that the first and the third statutory conditions under s 27 are satisfied.

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

(1)   Some grounds put forward, such as the Board’s use of COI and the absence of an oral hearing before the Board, were clearly misplaced.  The Defendant did attend an oral hearing before the Board and the Board made no reference to COI in its decision.  Grounds of this kind suggest that the Defendant might have copied and pasted one of the circulating templates from another non-refoulement case.

(2)   The Defendant’s complaints were still directed at the decision of the Director and the Board when her case advanced through the appellate system.

(3)   She repeated the same grounds concerning use of COI, evaluation of documentary evidence and state acquiescence from the CFI stage to her attempt to seek leave from CA to appeal to CFA.

(4)   Her grounds are broad and general assertions without particulars or elaboration on how they apply to the relevant decisions before the Court.

(5)   She requested to file a subsequent claim only a week after her claim was finally disposed of by the CFA, based on largely the same set of facts.

23.  It is apparent that care was only given to ensure that the right forms were filled in and filed with the Registrar to enable the Defendant’s case to advance level by level in the appellant system. This is in stark contrast to the very little thought that had been put into the identification of her grounds of review/appeal.  I have no difficulty in finding she has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.

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

25.  I am satisfied that the Defendant has habitually and persistently instituted vexations proceedings.

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 her without level of the CFI;

(2)   All legal proceedings relating to any non-refoulement claim of the Defendant previously instituted by her (including but not limited to HCAL 1746/2020) before the making of this Order shall be continued by her 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.  Ms Ho 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.  I order the Defendant to pay the Director’s costs, summarily assessed at HK$35,000.