DIRECTOR OF IMMIGRATION v. MOHAMMAD AMIN UDDIN MONDOL

HCMP 1551/2021

[2022] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1551 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.  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.

3.  This claimant has followed that usual track.

B.      The Law on a Section 27 Application

4.  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.

5.  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.

6.  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.

7.  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

8.  The Defendant is a Bangladeshi national.  He was arrested upon his illegal entry into Hong Kong on 17 July 2014.  His non-refoulement claim was based on his political opinion which led to risks from members of the Awami League, especially a man known as Juwel and his armed men.

9.  The claim was rejected by the Director in 2016 and 2017 in 2 decisions.  He appealed to the Board, which rejected the claim on 14 November 2017.  The Board found that the Defendant was not a truthful and credible witness and that he had fabricated and concocted evidence to support his claim.

10.  In HCAL 938/2017, the Defendant sought leave to apply for judicial review to challenge the Board’s decision.  Deputy High Court Judge Bruno Chan analysed all the intended grounds of review raised and rejected each of them as follows:

12. On 23 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(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 Bangladesh;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh 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. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. Furthermore, given the fact that the applicant’s claim was rejected essentially on his credibility, any attempt to challenge the Board’s decision on its reliance of COI in the assessment of situations in Bangladesh seems to me futile and pointless, as it is well established principles that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against him by the adjudicator who had had the benefit of seeing and hearing him in evidence and in answering her questions at the oral hearing on the core of his claim that he was a member of Chhatra Shibir and was thus specifically targeted by the AL supporters which was rejected by the adjudicator as his fabrications to advance his claim for non-refoulement protection, I fail to see how any of these grounds of the applicant can be reasonably arguable.

15. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

16. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing before the Board.  Accordingly, I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

11.  Then, the Defendant sought leave to appeal to the CA: see [2018] HKCA 788.  The Defendant failed to lodge written submissions as directed by the Court and his appeal was thus heard on paper.  The appeal was swiftly dismissed:

10. In the Notice of Appeal dated 19 July 2018 the applicant did not provide any grounds of appeal referring instead to his affirmation filed the same day.  In his affirmation, the applicant said that the judge was wrong in law in holding that there was no state acquiescence or involvement.  He also complained that the judge also failed to provide detailed reasons in support of his decision.

11. In Exhibit A annexed to the affirmation dated 19 July 2018, he reiterated the 8 grounds of judicial review found in his affirmation dated 23 November 2017.  He added a new ground based on misdirection of law which states that the Board misdirected itself by “taking into account that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.”

15. We would not allow the applicant to rely on the new ground based on misdirection of law.  This ground was never canvassed at the Court of First Instance and is now well outside the time limit for judicial review (Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

16. The applicant claimed that the judge erred in holding that there was no state acquiescence.  The applicant failed to provide any particular for those grounds.  This ground lacks substance and is bound to fail.

17. The applicant also alleged that the judge failed to provide detailed reasons for his decision.  As is apparent from the parts of the judgment below set out in paragraph 9 above, this allegation is without merit.  The judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form.

18. In Exhibit A, the applicant simply repeated the 8 grounds of judicial review before the judge.  These grounds are not directed at the errors of the judge but at the alleged errors of the Board.  The judge had already dismissed those grounds after careful consideration, and no basis is made out for suggesting that the judge had erred in doing so.  These are not, therefore, valid grounds of appeal at all.

12.  The Defendant then sought leave from the CA to appeal to the CFA: see [2019] HKCA 228.  The CA dismissed notice of motion as it did not raise any question of great general or public importance or which should otherwise be referred to the CFA, saying:

3. The applicant subsequently applied, by a notice of motion dated 9 November 2018, for leave to appeal to the Court of Final Appeal.  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 about the poor performance 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 ascertain the current situation in Bangladesh.

5. Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 13 November 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6. Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion.

7. The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion.  The first paragraph of the notice of motion is vague and lacks particulars.  The matter raised in the second paragraph was not relied on by the applicant in his notice of appeal. As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3] As for the third ground, the applicant never provided any further document to supplement his notice of motion.

8. The matters mentioned in the affirmation do not take the applicant any further.  As we pointed out in [16] of our judgment, the applicant’s ground of appeal based on state acquiescence or involvement was vague and unparticularised and thus could not succeed.

13.  The Defendant then applied to renew his application for leave to the CFA in FAMV 86/2019.  The application was eventually dismissed by the Appeal Committee for disclosing no reasonable grounds for appeal on 6 January 2020.

14.  After his non-refoulement claim was finally determined by the CFA, he requested to make a subsequent claim one week later on 13 January 2020.   The subsequent claim was based broadly the same set of facts with the additional information that there was an incident in November 2019 in which members of the Awami League caused trouble to the Defendant’s father and family.  It was suggested that the incident was reported in a local news and the victim in the news (under a different name from his father) was his father whose “nick name” rather than real name was reported.  By decision dated 19 June 2020, the Director refused to allow the Defendant to make a subsequent claim on the basis that even if the additional information was true, that would not give rise to a realistic prospect of success.

15.  On 11 August 2020, the Defendant filed a Form 86 in HCAL 1640/2020 to challenge the subsequent claim decision.  No grounds were identified in the Form 86 but it is stated that “Please see the Affirmation Pages for rest of the grounds for the Leave for Judicial Review.”

D.      Whether to Grant Order

16.  At the hearing, the Defendant said he was prepared to respect the law of Hong Kong and to return to his home country. However, he asked for one more year of stay so that he could have enough time to reach an amicable settlement with his enemies at home.  Otherwise, he would die within a few seconds when he landed in Bangladesh, given that Awami League is currently in power.

17.  I have considered all the materials before the Court and concluded that the 3 statutory conditions required by section 27 are all satisfied.

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 are satisfied.

19.  Also satisfied 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)   He failed to file written submissions despite being requested to do so by the Court of Appeal.

(2)   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.

(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 discussion.

(4)   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.

(5)   The Form 86 for the latest judicial review leave application appears to be a template – it contains no grounds yet refers to the affirmation for the rest of the grounds.

20.  Whilst care was given by the Defendant to ensure that the right forms were filled in and filed with the Court Registrar to ensure that his case could advance level by level in the appellant court system, there was no equal measure in the care given to the formulation of his grounds for review/appeal.  The grounds were often so general and vague that they also looked like template for all non-refoulement cases.  I have no difficulty in finding that the Defendant had habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.

21.  Indeed, the Defendant’s oral submissions at the hearing on 30 December 2021 further suggested or confirmed that the Defendant would not hesitate to deploy any tactics to prolong his stay in Hong Kong.  He suggested that he is willing to return and would only require one more year for him to reach an amicable arrangement with his enemies.  But, he has been illegally staying in Hong Kong since July 2014, so for 7½ years, and the natural question is why he did not try to reach such an arrangement in the past 7½ years. This smacks of a further attempt to delay deportation.  The present application is not the venue to assess his original or subsequent non-refoulement claim. But such conduct only tends further to confirm the Director’s submissions that the previous judicial proceedings were instituted for the collateral purpose of delaying deportation.

22.  I have no difficulty in finding that the Defendant had 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 1640/2020) 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.  He submitted that he should not be asked to pay the Director’s costs in the event that he loses.  However, if necessary, he was willing pay by monthly instalment of HK$500 per month which would be sent over to him from Bangladesh or by some other means.

25.  I see no reason why the costs should not follow the event.  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 ordered the Defendant to pay the Director’s costs, summarily assessed at HK$25,000.