DIRECTOR OF IMMIGRATION v. AL AMIN SHAK MOHAMMAD

HCMP 1683/2021

[2022] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1683 OF 2021

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D E C I S I O N

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A.     Introduction

1.  This is another of the many applications made by the Director under section 27 of the High Court Ordinance Cap 4, here for an order prohibiting this 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.  The applications are brought by the Director 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 Jenny Cheung, Senior Government Counsel (Ag).  The Defendant was absent, but I was satisfied he had been served with notice of the hearing.  Judgment 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:

(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 Bangladeshi national who has been illegally staying in Hong Kong since 2016.  He sought non-refoulement protection 5 days after he was arrested as an illegal immigrant.  He claimed to be a member of the BNP party and that he faced risks from the currently ruling party Awami League.

10.  The Defendant in this case has taken two rounds of judicial reviews already.  One concerning his original claim, the other, his subsequent claim.

C1.    The 1^st round of judicial proceedings

11.  His claim was first rejected by the Director in 2017 and then by the Board by decision dated 27 January 2017.  The Board doubted the credibility of the Defendant’s evidence and was not satisfied that he was a member of the BNP.  The Board also found that, based on the nature of conflict with Awami League people as described by the Defendant, the physical or mental harm, if true, inflicted upon the Defendant had not attained the required minimum level of severity.  It also found that reasonable state protection by the Bangladeshi government was available and that relocation to other cities of Bangladesh was also reasonable given that the Defendant was then an able-bodied 28-year-old male.

12.  The Defendant sought leave to apply for judicial review to challenge the Board’s decision in HCAL 639/2017.  Deputy High Court Judge Woodcock found that all the grounds were without merit and substance.  She said:

14. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the adjudicator explained the process to him and the applicant adopted the appeal bundle.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

15. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

16. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up-to-date and objective.  I find no merit in this ground.

17. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

13.  The Defendant then appealed to the CA: see [2019] HKCA 740.  He raised two grounds in his Notice of Appeal, which were quoted in §18 of the Judgment:

(1) the applicant will face hardship if he is to return to his home country;

(2) the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  It has also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in groundless speculations.

14.  The oral hearing was vacated because the Defendant failed to lodge written submissions as directed and the appeal was determined on paper.  The CA rejected both grounds (§§21-16).  Ground 1 was a new ground not raised in the CFI below and the CA would not easily overturn the Board’s assessment of evidence.  Ground 2 consisted of bare assertions without evidence in support or particulars to elaborate how that could apply to the Board’s decision.

15.  The Defendant then sought leave from the CA to appeal to the CFA: see [2018] HKCA 968.  The grounds for the leave application were quoted in §8 of the Judgment:

“There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favour on reject my claim. Actual life occur different situation then mentioned COI information. Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining”.

“The decision is betray a bias and formula. Approached unlikely fairly access the danger of my life and clearly calculate to reject my claims”.

16.  The Defendant also submitted an 11-page written submission in which the basis of the risks he would face upon return was reiterated.  Leave was refused.

17.  The Defendant then renewed his leave application for appeal to the CFA in FAMV 115/2018.  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.

C2.    The 2^nd round arising from the subsequent claim request

18.  Just 11 days later, on 11 November 2019, the Defendant requested to file a subsequent claim.  This has led to another round of judicial proceedings.  His intended subsequent claim still concerns the conflict between the Awami League and the BNP.  He said that there were two more incidents in August and November 2019 where his family was attacked by the Awami League people, but no evidence was provided in support.  The Director rejected the Defendant’s request to file a subsequent claim by decision dated 20 February 2020.

19.  He applied for leave for judicial review to challenge that decision in HCAL 303/2020.  The grounds of review are quoted in §14 of the Judgment:

(1) He is a genuine non-refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2) The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3) He had to run away or he would be killed by his enemies.

20.  Deputy High Court Judge KW Lung swiftly disposed of the leave application on the basis that the all grounds were without specifics in support and it was not necessary for the Director to go to the Defendant’s home country to make enquiry (§§17-18).

21.  The Defendant then appealed to the CA in CACV 228/2021: see [2021] HKCA 1488.  The grounds of appeal were summarized in §§11-14 of the Judgment:

11. On 7 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

12. The applicant lodged written submissions for his appeal on 13 August 2021. Those submissions consist mostly of general statements of law quoted from case law without identifying how they relate to or apply in this case.

13. At paragraph 2(1) of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision.  The applicant argued that the Board failed to scrutinize the Director’s decision and that it is a general practice of the Board to not question or find fault with the Director’s decision.  At paragraph 2(2) of his submissions, the applicant argued that the Board should have but did not consider country conditions.

22.  Since the Defendant failed to point to any error committed by the Judge, the CA dismissed the appeal on 26 October 2021 (§§20-21).

23.  The Defendant then sought leave from the CA to appeal to the CFA: see [2021] HKCA 1827.  The grounds put forward in the Notice of Motion were quoted in §3 of the Judgment:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

24.  The written submission filed by the Defendant asserted that the Board acted in a procedurally unfair manner without properly assessing his credibility.

25.  For obvious reasons, the CA refused to grant leave to appeal to the CFA by decision dated 7 December 2021. There is no outstanding application to renew the leave application to the CFA.

D.      Whether to Grant Order

26.  The Defendant was absent in the hearing on 31 December 2021.  Ms Cheung explained that all relevant materials have been duly served to his last known address as was supported by affirmation of service.  I was made known of the fact that the Defendant was currently a wanted person for failing to report under his terms of recognizance.  I enquired with Ms Cheung if officers had been sent to look for him in his last known address, which may raise concern about the effectiveness of the service.  Ms Cheung confirmed that no police or immigration officers have been sent to fetch him.  I checked that the address to which the materials were sent was the address provided to the Court by the Defendant himself in October 2021 in CACV 311/2018.  I am satisfied that there was effective service on the Defendant in the circumstances.

27.  The application is made by the Director who is an affected person in the meaning of section 27. The first statutory condition is satisfied.  As explained above, I am also satisfied that the third statutory condition is fulfilled as the Defendant had a proper opportunity to be heard.

28.  I accept that the second statutory condition – that the Defendant has habitually and persistently instituted vexatious legal proceedings – is also satisfied.

29.  Unlike most of the section 27 applications handled by the Court up until now, this Defendant has had two rounds in the court and appellate system already.  His litigation conduct bears the same hallmarks throughout the two rounds:

(1)   The grounds advanced from CFI to his attempt to seek leave to CFA from CA are all broad and vague assertions without any elaboration on how they applied to the relevant decision the subject of review/appeal.

(2)   He saw no difference between the first round and the second round even though they have arisen from two different underlying decisions: one the Board’s rejection of his original claim, and the other from the Director’s refusal to allow him to file a subsequent claim.

(3)   He kept complaining about COI in both the rounds. But in the first round, his claim was mainly rejected by the Board based on his credibility and the low intensity and severity of the harm inflicted by the Awami League, even if true.  In the second round, the Director rejected the claim because the alleged new information supplied does not make good his claim.

(4)   In both the rounds, the decision the subject of his complaints remained the same when he was at different levels of the court system.

(5)   In the second round, when he appealed to the CA, he referred to the Board’s decision when the decision maker of that round was the Director instead.

(6)   In both rounds, clearly no court at any level has ever considered any grounds of review/appeal raised as capable of serious argument.

30.  Indeed, most if not all of his grounds raised throughout the two rounds of proceedings could be dismissed outright for self-explanatory reasons.  I have no difficulty in finding he has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.

31.  In the overall circumstances, I agree with the Director that the Defendant instituted those proceedings for the collateral purpose of delaying his removal from Hong Kong.

32.  I have no doubt that all three statutory conditions have been met.

E.      Conclusion

33.  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 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.

34.  Ms Cheung 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 ordered the Defendant to pay the Director’s costs, summarily assessed at HK$35,000.