DIRECTOR OF IMMIGRATION v. RAMANATHAN ARUNAGIRINATHAR

HCMP 1472/2021

[2022] HKCFI 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1472 OF 2021

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D E C I S I O N

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A. Introduction

1.  The Director applies 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 (“the 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.  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 Sri Lankan national and a Tamil.  He has been illegally staying in Hong Kong since 2007.  He raised his non-refoulement claim in December 2007.  His claim is based on risks from (i) the paramilitary group known as TELO for rendering assistance to an opposite group known as LTTE and (ii) his wife’s new boyfriend who would harm him if he was to return.

10.  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 10 November 2017.  The Board found that the Defendant was not a truthful and reliable witness and disbelieved that the events which he said had happened to him personally did indeed occur.

11.  On 14 November 2017, the Defendant sought leave to apply for judicial review to challenge the Board’s decision in HCAL 885/2017. The ground put forward was quoted in §10 of the Judgment as:

“I need to explain my situation in this my ground that I have life threaten by unauthorized arm group and police department too, once they detain me in police more than one year, and I met many tortured by police too, if I go to my country my life become uncertain and can lose my life too. Therefore I like to remain in Hong Kong until become settle my problem. I attach exhibit (1) but I can submit my many proof document when my case hearing. I need time to obtain all as soon as possible.”

12.  Since the Defendant did not point out any errors committed by the Board, Deputy Judge Bruno Chan refused to grant leave (§13).

13.  Then, the Defendant appealed the CFI Judgment to the CA out of time: see [2019] HKCA 185.  The grounds of appeal are quoted in §12 of the Judgement:

(a)  He would like to review the Director’s Decision in that it disregarded his dangerous situation;

(b)  He was not given sufficient time to prepare for his case because most of his documents needed to be translated into English;

(c)  He has given all his documentary proof.

14.  Since the Defendant did not point out how the CFI Judge erred in his decision, the CA dismissed the appeal (at §13).

15.  The Defendant then sought leave from CA to appeal to CFA: see [2019] HKCA 475.  The grounds put forward are summarized in §§3-4 of the Judgment:

3.   It was stated in the notice of motion that the decision makers relied on the country of origin information, but the actual life situation was different.  It was also stated that the decision makers and the courts had ignored overwhelming evidence of violence against minorities, and had demonstrated a biased approach that did not take into account the danger of the applicant’s life.

4.   In his written submissions lodged on 20 March 2019, after setting out his personal background, the applicant sought to challenge the decisions of the Director and the Board on the following grounds:

(a)  The Director failed to examine and to give sufficient regard to the concept of state acquiescence;

(b)  The Director erred in holding that there were alternative avenues in seeking justice in Sri Lanka by failing to take into account the police corruption and human rights violation therein;

(c)  The adjudicator failed to examine and to give sufficient regard to the extended concept of state acquiescence;

(d) It was only the adjudicator’s speculation that the Sri Lankan government had taken steps to protection its citizens;

(e)  The adjudicator failed to advise the applicant to obtain medical reports from Sri Lankan authorities; and

(f)  The lack of legal representation violated the high standards of fairness.

16.  The grounds are either not directed at the first CA decision or concern matters which were not raised in the CA before.  The CA refused to grant leave because the intended appeal does not raise any questions of great general public importance or which should be otherwise referred to the CFA (§§5-8).

17.  The Defendant then applied to renew his application for leave to the CFA in FAMV 159/2019.  The application was eventually dismissed on 15 May 2020 by the Appeal Committee, for disclosing no reasonable grounds for appeal, under Rule 7 of the Hong Kong Court of Final Appeal Rules Cap 484.

18.  About 2 months later, he requested to make a subsequent claim.  The subsequent claim was based broadly on the same set of facts with the “significant change of circumstances” said to be two incidents which occurred in February and April 2020 back in his home country.  The incidents were hearsay which was said to be imparted by the Defendant’s mother over the phone.  By decision dated 27 October 2020, 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.

19.  On 24 February 2021, the Defendant filed a Form 86 in HCAL 2286/2020 to challenge the subsequent claim decision.  The one-page Form 86 does not identity the grounds of review and the relief sought is “Judge review of my claim”.

D.Whether to Grant Order

20.  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 he had the opportunity to be heard.  It was his choice not to make use of the opportunity.  I am satisfied that the first and the third statutory conditions under section 27 are satisfied.

21.  So is the second statutory condition – that the Defendant has habitually and persistently instituted vexatious legal proceedings.  The following stands out from his litigation conduct:

(1)  The Defendant had failed to identify anything which could be said to constitute valid grounds at the relevant level of the Court. At the CFI level, he did not identify any error of the Board but only repeated the factual basis of his non-refoulement claim.  At the CA level, he did not identify any errors in the CFI Judgment.  When he sought leave to appeal to the CFI, he did not identify any errors committed by the CA.

(2)  He kept complaining against the decisions made by the Director and the Board when he appealed to the CA and sought leave from CA to appeal to the CFA, when both decisions were irrelevant at those stages.

(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 he intended to raise in July 2020 relied on substantially the same sets of facts 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 attempt to identify any ground of review.

22.  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 appellate system. It is striking that the Defendant did not even identify the right decision against which he was seeking to review/appeal at each level of Court.  These are classic examples of judicial proceedings which are manifestly groundless and clearly untenable.

23.  Viewing his overall litigation conduct as a whole, it also seems that he intentionally kept his case alive in the judicial system with the purpose of delaying his deportation from Hong Kong.

24.  There is sufficient evident 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.

E.Conclusion

25.  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 2286/2020) 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.

26.  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 litigation 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$30,000.