DIRECTOR OF IMMIGRATION v. MD HASNAIN

HCMP 603/2021

[2021] HKCFI 2894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 603 OF 2021

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D E C I S I O N

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A.  Introduction

1.  On 9 June 2021, Chow JA (sitting as an additional Judge of the Court of First Instance)  made a restrictive proceedings order (“RPO”)  in these proceedings under section 27 of the High Court Ordinance Cap 4 (“HCO”)  that the Defendant shall not institute or continue any legal proceedings relating to any non-refoulement claim, without leave of the Court of First Instance.  He further ordered, amongst other things, that any application by the Defendant for leave to institute or continue legal proceedings relating to any non-refoulement claim of him, under RHC Order 32A rule 2, shall be made to the Judge in charge of the Constitutional and Administrative Law List.

2.  The RPO was made on the application (“Section 27 Application”)  of the Director of Immigration (“Director”).  The Section 27 Application was made by the Director in the specific context of an application made by the Defendant in HCAL 409/2021 for leave to apply for judicial review of the decision of the Director dated 22 February 2021, refusing to permit him to make a subsequent claim for non-refoulement protection under the Director’s unified screening mechanism (“USM”).

3.  Indeed, Chow JA heard the Defendant’s application for leave to apply for judicial review together with the Section 27 Application on 1 June 2021, and he dealt with them both in his Reasons for Decision dated 9 June 2021, [2021] HKCFI 1610.

4.  Now by Notice dated 17 September 2021, the Defendant seeks an order to suspend the RPO, so as to permit him to appeal from the refusal to grant him leave to apply for judicial review in HCAL 409/2021.

B.  The Present Application

5.  The Defendant’s present application is supported by his affirmation dated 15 September 2021.  In that affirmation, the Defendant appears to make the following points:

(1)  Chow JA failed to carry out sufficient research and enquiry into the country of origin information (“COI”)  and failed to have regard to relevant and up-to-date COI in the consideration of his claim and to the Covid-19 virus pandemic worldwide condition;

(2)  Chow JA also failed to address political activities and to pay sufficient regard to supporting documents in rejecting the torture claim.

6.  As further particulars, the Defendant also refers to:

(1)  the “worldwide Lockdown for Corona virus Pandemic” [sic], and the updated cases in his country (India)  as at 14 September 2021;

(2)  the new (Indian)  Citizens Amendment Act 2019;

(3)  his inability to return to India when the situation is “unwell”, “not good” and “getting worse day by day”;

(4)  that the pandemic has caused damage to the political and economic condition of his country which cannot be recovered easily, so that he does not want to go back to his country;

(5)  that he will return to India when the pandemic situation comes to an end and requests permission to stay in Hong Kong until the situation is resolved;

(6)  that the present proceedings should be settled similarly as in another case, and the Director should consider the case afresh in a different way and if necessary the BOR 2 should be done separately, requiring re-screening of the non-refoulement claim considering the additional grounds not previously represented or recognised.

C.  Applicable Principles

7.  Before turning to the detail of this matter, it is helpful to set out in brief the legal principles relating to (1) orders made under section 27 of the HCO and (2) principles governing the making of subsequent non-refoulement claims.

8.  Section 27 of the HCO states as follows:

“Restriction of vexatious legal proceedings

(1)  The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that—

(a)  no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)  any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2)  The Court of First Instance may not make an order under subsection (1)  unless -

(a)  it is satisfied that the person against whom the order is to be made 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

(b)  it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3)  An order made under subsection (1)  -

(a)  may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)  may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

(4)  A copy of an order made under subsection (1)  shall be published in the Gazette.

(5)  In subsection (1), affected person (受影響的人)  means a person who -

(a)  is or has been a party to any of the vexatious legal proceedings; or

(b)  has directly suffered adverse consequences resulting from such proceedings.”

9.  There are three conditions which must be satisfied before the Court of First Instance may make an order under section 27:

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

(2)  the person against whom the order is to be made 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)  it has heard the person against whom the order is to be made or given him an opportunity of being heard.

10.  Reference can also be made to Director of Immigration v Etik Iswanti [2021] HKCFI 1589, which sets out, at §§32 and 35, some relevant principles.

11.  The making of a subsequent claim by a person who has previously made a “torture claim” is constrained by section 37ZO of the Immigration Ordinance Cap 115, which, so far as relevant, states as follows:

“(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that -

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(5)  If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

12.  As Chow JA noted, the same constraints on the making of subsequent claims are applicable to other non-refoulement claims under the USM (see Ram Chander v Director of Immigration [2018] HKCA 585, at §9).  The following is stated in the Note on “Determination of Non-refoulement Claims” prepared by the Immigration Department dated 12 September 2016:

“Subsequent Claim

Limitation on subsequent claim

[82] A person who has previously made a non-refoulement claim must not subsequently made another non-refoulement claim (i.e. a subsequent claim), unless he can provide sufficient evidence in writing to satisfy an immigration officer that (a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

[83] In deciding whether or not a person may make a subsequent claim, the case officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a non-refoulement claim or torture claim previously made by the person.

Decision on whether subsequent claim may be made

[84]  The decision on whether the person can make a subsequent claim must be served on the person by way of a written notice.  Where the decision is to reject the application to make a subsequent claim, the case officer must give the person written notice of the decision which must include the reasons for the decision.”

D.  Chow JA’s Reasons for Decision

13.  As well as canvassing the applicable legal principles, Chow JA set out the background facts and long procedural history, before his analysis as to the merits of the two applications being heard together.  The Reasons for Decision can be read for a full rehearsal of those matters.  However, it is not necessary now to repeat those matters in full and, for present purposes, the following summary is sufficient.

14.  The Applicant is an Indian national born in 1988.  He arrived in Hong Kong on 18 December 2013 with permission to remain as a visitor up to 1 January 2014, but failed to leave and has since overstayed in Hong Kong.  He surrendered himself to the Immigration Department on 14 January 2014, and lodged a non-refoulement claim on 12 March 2014 (“Original Claim”)  on the basis that if he returned to India, he would be harmed or killed for failing to repay a loan.  A removal order was made against the Applicant on 22 October 2015.  He did not appeal against the removal order.

15.  By a notice of decision dated 20 November 2015, the Director rejected the Original Claim based on torture risk, BOR 3 risk and persecution risk.  The Director considered the dispute a private monetary matter where state protection would be available to the Defendant if resorted to, and that objective COI showed reasonable available internal relocation alternatives.

16.  The Defendant filed a Notice of Appeal/ Petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  on 1 December 2015.

17.  By a notice of further decision dated 21 February 2017, the Director rejected the Original Claim based all applicable grounds for non-refoulement protection including any absolute or non-derogable rights under the Hong Kong Bill of Rights (including the right to life under BOR 2).

18.  The Board held an oral hearing of the Defendant’s appeal/petition on 21 March 2017, and by a decision dated 1 September 2017 (“Board’s Decision”)  dismissed the appeal/petition and confirmed the Director’s decisions dated 20 November 2015 and 21 February 2017.

19.  On 24 November 2017, the Defendant filed a Form 86 in HCAL 953/2017 to challenge the Board’s Decision, on various intended grounds for challenge.  The Defendant requested an oral hearing, but failed to turn up at the hearing.  By decision dated 20 July 2019 (“CFI Decision”), DHCJ Bruno Chan refused to grant leave to apply for judicial review of the Board’s Decision.

20.  On 31 July 2018, the Defendant filed a Notice of Appeal in CACV 353/2018 against the CFI Decision.  The grounds of appeal raised included that (1) he would face hardship if he were to return to his home country and (2) the Board had relied on news that was not officially recognised or was simply hearsay and was outdated.

21.  On 20 December 2018, the Court of Appeal dismissed the appeal (“1^st CA Decision”): see [2018] HKCA 982.  On 2 January 2019, the Defendant applied for leave to appeal the 1^st CA Decision.  On 4 March 2019, the Court of Appeal dismissed the Applicant’s application for leave to appeal (“2^nd CA Decision”): see [2019] HKCA 200.

22.  The Defendant then made a further application to the Court of Final Appeal in FAMV 76/2019 for leave to appeal the 1^st CA Decision.  On 17 December 2019, the Appeal Committee of the Court of Final Appeal made an order under Rule 7 of the Hong Kong Court of Final Appeal Rules Cap 484A, dismissing the application on the ground that it disclosed no reasonable grounds for leave to appeal.  That conclusively brought to an end the Original Claim.

23.  By letter dated 29 January 2020 to the Director, the Defendant stated that he wished to go back to India, his home country, as soon as possible because it was safe for him to go back, and he wanted to cancel all his non-refoulement claims.  However, he changed his mind shortly afterwards.  By a further letter dated 20 February 2020, the Defendant sought to make a subsequent claim under s 37ZD of the Immigration Ordinance (“Request”).  Further information and materials in support of the proposed subsequent claim were provided in the Applicant’s letter dated 18 June 2020 and in a letter from the Duty Lawyer Service dated 1 December 2020. On 17 February 2021, an immigration officer interviewed the Applicant in person in the presence of his assigned duty lawyer and an interpreter in relation to his proposed subsequent claim.

24.  On 22 February 2021, the Director refused to permit the Applicant to make a subsequent claim (“Decision”).  The reasons for the Decision included that the Director did not accept that (a) there had been a significant change of circumstances since the Original Claim was finally determined, and (b) the claimed change, when taken together with the materials previously submitted in support of the Original Claim, would give intended subsequent claim a realistic prospect of success.  It was also stated that the Defendant’s credibility was in doubt.

25.  On 23 March 2021, the Defendant filed a Form 86 to apply for leave to apply for judicial review of the Decision, and sought an order to quash the Decision.  As Chow JA noted, the Form 86 did not set out any grounds on which relief was sought, and neither did the supporting affirmation.  The Defendant requested for an oral hearing of the leave application if leave to apply for judicial review was not granted.  But he again failed to attend the hearing.

26.  Chow JA held that the intended application for judicial review of the Decision was plainly not reasonably arguable, and had no realistic prospect of success, for reasons which he explained.  Accordingly, the application for leave to apply for judicial review of the Decision was dismissed.

27.  Chow JA also held that the three conditions for the exercise of the court’s discretion to make the RPO against the Defendant were satisfied in the case.  He noted in particular that the Defendant’s applications in HCAL 953/2017, CACV 353/2018 and HCAL 409/2021 were all obviously untenable or manifestly groundless as to be utterly hopeless, and constituted an abuse of the court’s process.  He also made a costs order against the Defendant on that basis.

E.  Analysis

28.  In this case, the RPO was made in the specific context of the Defendant’s commencement of HCAL 409/2021.  I agree with Chow JA that those proceedings were clearly untenable, manifestly groundless, utterly hopeless and an abuse of the court’s process.

29.  The Defendant did not even set out any grounds on which relief is sought in the Form 86 as mandatorily required by Order 53 rule 3(2)(a)(iii).  Nor were any grounds set out in the affirmation.  Obviously, in those circumstances, there is absolutely no merit in any suggested or intended appeal.  Permitting that will simply permit yet further abuse of the court’s process, and waste court time and other resources.

30.  Further, HCAL 409/2021 was based upon same subject matter as the previous applications, involving the rejection of his non-refoulement claim based on an allegation that, were he to return to India, he would be harmed or killed.  I agree with Chow JA that the action manifests a refusal by the Defendant to accept the unfavourable outcome of the rejection of his non-refoulement claim, even though the same has been finally and conclusively determined by the Court of Final Appeal’s dismissal of his application for leave to appeal the 1^st CA Decision.

31.  That the Defendant has a history of failing to attend court hearings even on his own applications is deeply unhelpful to his current application.  As with the previous steps taken by the Defendant, the current application is also evidence of an intention on his part to cause yet further unwarranted delay.

32.  I see no proper basis on which to exercise the discretion in favour of the Defendant on this application.

F.  Result

33.  In accordance with Practice Direction 11.3, at §10(5), I have dealt with this application on the papers as I see no need for any oral hearing nor any reason further to trouble the Director with a request for him to respond to the application.

34.  It seems to me that the answer to the application is absolutely clear.  Without any hesitation, I dismiss it.  For the avoidance of doubt, the terms of the RPO remain in place.

35.  As I have not invited submissions from the Director, I make no order as to costs.