Etik Iswanti v. Torture Claim Appeal Board

Case No.HCAL 411/2021[2021] HKCFI 1589

Court

High Court CFI

Date09 Jun 2021

Judge—

Case Document

100%Judiciary

HCAL 411/2021 &
HCMP 602/2021
[2021] HKCFI 1589

HCAL 411/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 411 OF 2021

________________________

BETWEEN

	ETIK ISWANTI	Applicant
	and
	TORTURE CLAIM APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

AND

HCMP 602/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 602 OF 2021

BETWEEN

	DIRECTOR OF IMMIGRATION	Plaintiff
	and
	ETIK ISWANTI	Defendant

________________________

(Heard together)

Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court

Date of Hearing: 31 May 2021

Date of Decision: 9 June 2021

________________________

D E C I S I O N

________________________

INTRODUCTION

1.There are 2 applications before the court:

(1) an application by Ms Etik Iswanti (“the Applicant”) for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 18 March 2021 refusing to permit her to make a subsequent claim for non-refoulement protection under the Director’s unified screening mechanism (“USM”); and

(2) an application (“the Section 27 Application”) by the Director for an order under s 27 of the High Court Ordinance, Cap 4, that (i) no legal proceedings relating to any non-refoulement claim of the Applicant shall be instituted by her without leave of the Court of First Instance, and (ii) no other legal proceedings relating to any non-refoulement claim of the Applicant previously instituted by her shall be continued by her without leave of the Court of First Instance.

BACKGROUND FACTS

2.The Applicant is an Indonesian national born in 1981. She originally came to Hong Kong as a foreign domestic helper (“FDH”) in 2007, and last entered Hong Kong as FDH on 14 January 2010. Her limit of stay as FDH expired on 14 January 2012, and she was granted an extension of stay as visitor up to 16 January 2012. She overstayed in Hong Kong since 17 January 2012, and was arrested almost a year later on 15 January 2013. A removal order was made against her on 8 February 2013. Her appeal against the removal order was dismissed by the Immigration Tribunal on 4 March 2013, and she was released on recognizance by the Immigration Department on the same day. She failed to report for her recognizance in August 2013, and was re-arrested 11 months later in July 2014. She lodged a non-refoulement claim on 28 July 2014 (“the Original Claim”), and was released on recognizance on 22 August 2013.

3.The Applicant’s non-refoulement claim was based on an allegation that her parents had borrowed a lot of money from a person called Sulis in Indonesia for their business but were unable to repay the debts. Sulis became abusive towards her family members and made threats against them, including a threat that he would rape and kill the Applicant. In 2005, Sulis seized the house of the Applicant’s family. She then lost contact with her family members. She left Indonesia and worked as a domestic helper in Singapore. In 2007, she returned to Indonesia and stayed with her aunt. However, Sulis found her there. He came with a bodyguard to demand repayment, but did not get satisfaction. She was assaulted by Sulis and the bodyguard, but managed to escape and flee to another city in Indonesia, where she received training for 4 months before coming to Hong Kong to work as FDH in 2007. In 2009, while she was in Hong Kong, her aunt told her that Sulis had found her mother and tried to rape her but did not succeed. Sulis also threatened that he would do the same to the Applicant if the debts owed by her parents were not repaid.

4.On 18 September 2015, the Applicant again failed to report for her recognizance. On 14 March 2016, by reason of repeated but failed attempts to contact the Applicant for arrangement for a briefing session in respect of the Original Claim, the Removal Assessment Session of the Immigration Department decided to take no further action on the Original Claim. Later, she was arrested by the Police and transferred to the Immigration Department for further handling on 10 October 2016. She then made a written request to continue with the Original Claim on 14 October 2016, and the same was resumed on 26 October 2016. She was released on recognizance on 3 November 2016.

5.By a Notice of Decision dated 13 January 2017, the Director rejected the Original Claim, for the following reasons:

“The Director did not accept the Applicant faced any torture risk, persecution risk, BOR 2 risk or BOR 3 risk. He also considered state protection and internal relocation were available to the Applicant in any event. On 13 January 2017, the Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.”[1]

6.The Applicant filed a Notice of Appeal/ Petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 20 January 2017. The Board held an oral hearing of the appeal/petition on 22 January 2018, and dismissed the appeal/petition by a decision dated 19 April 2018 (“the Board’s Decision”), for the following reasons:

“[19] The Adjudicator noted the alleged loan was drawn by the Applicant’s parents almost 25 years ago. He was prepared to accept the Applicant's parents had difficulty to pay back the loan and Sulis pressed them hard. However, the Adjudicator did not believe Sulis had targeted the Applicant for any harm. The Applicant had not been inflicted with severe harm. Her behaviour was also not consistent with one who had genuine fear of serious harm since she delayed much in seeking non-refoulement protection. The Adjudicator found the Applicant’s claim incredible. He did not believe the Applicant was unable to repay Sulis when she had worked as domestic helper overseas for so many years. He did not believe the Applicant's family became dispersed and the Applicant lost contact with her family members then.

[20] In any event, the Adjudicator was satisfied that reasonable state protection and internal relocation were available to the Applicant.

[21] The Adjudicator considered the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 19 April 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.”[2]

FIRST SET OF JUDICIAL REVIEW PROCEEDINGS

7.On 24 April 2018, the Applicant filed a Form 86 in HCAL 709/2018 to challenge (inter alia) the Board’s Decision. The Form 86 did not set out any ground for relief.

8.On 9 January 2019, Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the Board’s Decision (“the CFI Decision”), for the following reasons:

“[29] The Applicant complained the Adjudicator failed to consider properly the issue of state protection and failed to conduct sufficient inquiry of relevant country-of-origin information (‘COI’). She also said the Adjudicator failed to consider the situation in Indonesia and wrongly decided that internal relocation was viable.

[30] The Applicant’s complaints are not justified. The Adjudicator did have proper regard of her case and relevant COI before he ruled reasonable state protection and internal relocation were both available to the Applicant. His finding was not Wednesbury unreasonable.

[31] The Applicant complained the Adjudicator failed to give reasons for the assessment of BOR 3 risk and had no sufficient basis to find there was a lack of BOR3 risk. Again, such complaints are not correct. The paragraph under the title ‘BOR 2 & 3 Risks’ was brief. However, it was only a conclusion. The Adjudicator’s decision must be read as a whole. In his preceding paragraphs, the Adjudicator had given detailed reasons for his analysis of the Applicant’s case.

[32] The Applicant also complained the Adjudicator failed to take into account her psychological strain arising from the threats of the loan shark.

[33] The Adjudicator disbelieved the Applicant was a genuine non-refoulement protection seeker and did not accept she faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. There was no fear of harm or psychological strain found.

[34] I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.”[3]

9.On 14 January 2019, the Applicant filed a Notice of Appeal in CACV 15/2019 against the CFI Decision. All that was stated in the Notice of Appeal was that it was not safe for her to go back to her country. On 2 May 2019, the Court of Appeal (constituted by Barma JA and G Lam J) dismissed the appeal (“the 1^st CA Decision”, [2019] HKCA 490). At §13, the Court of Appeal gave the following reasons for the 1^st CA Decision:

“As set out above, the deputy judge dealt with the applicant’s grounds for applying for leave for judicial review. The applicant did not identify any error in the deputy judge’s decision, and failed to identify any viable grounds of appeal. The bare assertion that it is unsafe for her to return is not a proper ground for seeking leave for judicial review. In any event, the Board has adequately evaluated and dismissed this aspect of her claim in the Board’s Decision. The Board applied a low standard of proof, following the approach in Karanakaran [2000] Imm. A.R. 271, and only disregarded the applicant’s claims to which it was not willing to attach any credence at all. Even on this low standard the Board did not find the applicant’s claims credible in significant respects and accordingly found no real risk she would be targeted for serious harm if she returned to Indonesia.”

10.On 7 May 2019, the Applicant applied for leave to appeal the 1^st CA Decision. In the Notice of Motion, she stated:

“I am not satisfied with the decision because its bring more danger to my life. I don’t have enough sources to protect myself in my own country. I can’t survive for long if I returned back. So, please help me to stay here until I have problem.” [sic]

11.On 26 June 2019, the Court of Appeal dismissed the Applicant’s application for leave to appeal (“the 2^nd CA Decision”, [2019] HKCA 693), for the following reasons:

“[4] In her written submission, the applicant reiterated that loan sharks were dangerous and that she feared for her safety if she returned to Indonesia. She complained that the board did not conduct sufficient inquiry of relevant country of origin information, failed to give reasons, failed to take account of her psychological strain, and wrongly decided that internal relocation was viable.

[5] In our view, the matters stated by the applicant in the Notice of Motion and written submission 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 she has raised. We have dealt with the issue regarding the alleged danger upon her return at [13] of our judgment. The applicant has failed to identify any error in our judgment. There is no reasonably arguable issue for decision by the Court of Final Appeal.”

12.The Applicant then made a further application to the Court of Final Appeal in FAMV 221/2019 for leave to appeal the 1^st CA Decision. On 31 July 2020, the Appeal Committee of the Court of Final Appeal (constituted by Ribeiro, Fok and Cheung PJJ) 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.

THE APPLICANT’S REQUEST TO MAKE A SUBSEQUENT CLAIM

13.The Court of Final Appeal’s dismissal of the Applicant’s application for leave to appeal the 1^st CA Decision finally and conclusively brought to an end the Original Claim. The Applicant was undeterred. By a letter dated 9 September 2020, the Applicant requested the Immigration Department to reconsider her “torture claim”. After further correspondence between the Immigration Department and the Applicant/Duty Lawyer Service (“DLS”), a request for a “subsequent claim” (“the Request”) was made by the Applicant. Details of the proposed subsequent claim were set out in a 3-page document attached to DLS’s letter to the Director dated 5 March 2021. The proposed subsequent claim was based on the same allegation that the Applicant would be at personal risk at the hands of Sulis or persons working under him should she return to Indonesia. In addition to elaborating on or adding to the matters previously advanced in support of the Original Claim, the Applicant also alleged that:

(1)  she was told by her aunt that her mother had been kidnapped in 2009 by Sulis and/or his bodyguards;

(2)  she was told by her aunt in a long-distance call in mid-2019 that she (the aunt) had heard (recently in mid-2019) from Sulis’ fellow villagers that his younger brother had been kidnapped by Sulis and/or his bodyguards; and

(3)  she had lost contact with her aunt since the last long-distance call in mid-2019 and she was afraid that her aunt had also been kidnapped by Sulis and/or his bodyguards.

14.Pausing here, it may be noted that the making of a subsequent claim by a person who has previously made a “torture claim” is constrained by s 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.”

15.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.”

THE DIRECTOR REFUSED TO PERMIT THE APPLICANT TO MAKE A SUBSEQUENT CLAIM

16.On 18 March 2021, the Director refused the Request (“the Decision”), for the following reasons:

“After careful consideration, it is noted that your claimed threats as mentioned in paragraph 10 above relate to the loan dispute between your parents and Sulis remains unchanged and all of which have already been submitted and duly considered in your previous claim … Also, there is no new evidence nor documents to consider otherwise. The alleged loan was borrowed by your parents in 1993 (almost 28 years old). Even your parents had difficulty to pay back the loan to Sulis, there is no evidence that Sulis would or could pursue you as a legal debtor for your parents’ loan. There is no reasonable likelihood or real risk you would be targeted by Sulis if you return to Indonesia. Given that state protection would be available for you and internal relocation would be viable, it is your bare assertion that it is unsafe for you to return to Indonesia. You did not contact with your parents since 2005 and you came to Hong Kong for employment since 2007. It was a lapse of almost 24 years. There is no evidence in showing that Sulis is still looking for you. Your allegation about the kidnapping of your mother, your younger brother [name] was based on hearsay and was not your personal experience. The allegation about the kidnapping of your maternal aunt was based entirely on speculation. Apart from your mere speculation, no evidence [has] been adduced to prove that Sulis had [looked] or would [be] looking for you upon your return to Indonesia. Hence, they do not constitute any change of circumstances warranting your making of a subsequent claim.”

PRESENT APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (HCAL 411/2021)

17.On 23 March 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Decision. In the Form 86, the decision under challenge is mistakenly referred to as one made by the “Appeal Board - Dated: 18-3-2021”, and the “Torture Claim Appeal Board” is referred to as the proposed respondent. In view of the fact that the Applicant is acting in person, I shall overlook this mistake on the part of the Applicant, and proceed on the basis that the decision under challenge is the Decision of the Director made on 18 March 2021. The Form 86 shall be amended accordingly. Further, as directed by the court on 24 March 2021, the Director has been joined as an Interested Party to the present application.

18.The Form 86 does not set out any relief sought, or grounds on which relief is sought. In the supporting affirmation dated 23 March 2021, the Applicant merely stated:

“I am not satisfied with the decision given by the Torture Claim Appeal Board. I can’t go back to my country at this moment because my life is not [safe] in my own country. Please help me … stay here until my problem will be solved.”

19.The above, in substance, was repeated by the Applicant at the hearing on 31 May 2021.

20.In respect of the court’s role in an application for judicial review of a decision of the Director or the Board on a non-refoulement claim, the Court of Appeal said the following in Re Islam Rafiqul [2018] HKCA 570, at §14(1):

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

21.The above approach is, in my view, equally applicable to an application for judicial review of a decision of the Director on whether to permit a non-refoulement claimant to make a subsequent claim under s 37ZO or the USM. The Director is the primary decision-maker, and the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Director.

22.In the present case, the intended application for judicial review of the Decision is plainly not reasonably arguable, and has no realistic prospect of success, for the following reasons.

23.First, the Applicant has failed to set out any relief sought, or grounds on which relief is sought in the Form 86 as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A. Such requirement is mandatory.

24.Second, the ground put forward in the Applicant’s affirmation in support of the application, namely, that she was not satisfied with the Decision, is not a proper ground of judicial review. The Applicant’s bare assertion that it was not safe for her to go back to her home country is also not a proper or sufficient ground of judicial review.

25.Third, the Director was entitled to form the view that the Applicant had failed to produce sufficient evidence that there had been a significant change of circumstances since the Original Claim was finally determined, and the change (if any), when taken together with the material previously submitted in support of the Original Claim, would give the proposed subsequent claim a realistic prospect of success. In this regard, it is of note that, of the new matters raised by the Applicant in support of the proposed subsequent claim:

(1)  The alleged kidnapping of the Applicant’s mother by Sulis in 2009 was not raised by the Applicant in the Original Claim. In any event, it was based on hearsay evidence to which the Director was entitled not to give weight.

(2)  The alleged kidnapping of the Applicant’s brother by Sulis in or about 2019 was based on double hearsay evidence to which the Director was entitled not to give weight.

(3)  The fear that the Applicant’s aunt had been kidnapped by Sulis was, as rightly observed by the Director, based on her own speculation.

26.When considering whether the Applicant’s should be permitted to make the proposed subsequent claim, it is important to bear in mind that the purpose of allowing a subsequent claim:

“stems from the non-derogable rights under BOR 2 and BOR 3. As long as an applicant is still in Hong Kong, the Director has a continuing duty to observe the same, see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [175] to [176]. In that case, Ribeiro PJ cited a judgment of the Strasbourg Court in Al Husin v Bosnia and Herzegovina [2012] ECHR 232 holding that in the European setting, the decision maker (the court in that case) has a duty to ensure that the assessment is a full and up-to-date one of the current situation. In Hong Kong, as the primary decision maker is the Director (and the Board), the Director cannot ignore such duty notwithstanding previous assessments having been made if an applicant provides further cogent evidence or information on the current situation establishing a substantial risk of harm” (see Ram Chander, ante, at §10).

27.Thus, a non-refoulement claimant should be permitted to make a subsequent claim if he/she can provide further cogent evidence or information on the current situation establishing a substantial risk of harm notwithstanding a previous rejection of his/her non-refoulement claim. This having been said, the possibility of being able to make a subsequent claim gives rise to an obvious avenue, or loophole, for a non-refoulement claimant to abuse the system in order to prolong his/her stay in Hong Kong, having regard to the Director’s “removal policy” of non-refoulement claimants, namely, that (i) where an unsuccessful claimant has requested to make a subsequent claim, his/her removal would only commence upon the Director’s determination of the request, (ii) if the request is accepted, the removal would be suspended until the final determination or withdrawal of the subsequent claim, and (iii) the Director will also suspend a removal if court proceedings have been commenced, or if the Director knows that court proceedings are about to commence, by a non-refoulement claimant seeking to challenge the Director’s refusal of a request to make a subsequent claim, or rejection of a subsequent claim[4].

28.The safeguard against such abuse lies in the requirements on a non-refoulement claimant, before he/she is permitted to make a subsequent claim -

(1)  to provide “sufficient evidence” to satisfy an immigration officer,

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

(3)  that 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”.

These triple requirements, viz “sufficient evidence”, “significant change of circumstances” and “realistic prospect of success”, ought, in my view, to be applied robustly to ensure that, while genuine subsequent claims are permitted to be raised, the system of non-refoulement protection will not be abused by claimants seeking merely to prolong their stay in Hong Kong.

29.When considering applications for leave to apply judicial review of a decision of the Director to refuse a non-refoulement claimant permission to make a subsequent claim, the court should bear in mind that the legislature has entrusted the Director, not the court, with the task of determining whether the aforesaid triple requirements are satisfied such that a subsequent claim may be allowed to be made. The court should not lightly interfere with the Director’s assessment unless grounds for judicial review (ie illegality, irrationality or procedural impropriety) are clearly established. The court must also be astute to see that the system of permitting a non-refoulement claimant to make a subsequent claim is not being abused.

30.In the present case, there is no proper basis on which the court may interfere with the Decision of the Director not to permit the Applicant to make the proposed subsequent claim. Accordingly, the application for leave to apply for judicial review of the Decision is dismissed.

SECTION 27 APPLICATION (HCMP 602/2021)

31.Section 27 of the High Court Ordinance 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.”

32.The principles governing the court’s exercise of its discretion to make an order (“Section 27 Order”) under s 27 of the High Court Ordinance were comprehensively reviewed by J Lam J (as he then was) in Secretary for Justice v Ma Kwai Chun [2006] 1 HKLRD 539:

“[29] A section 27 order is a strong measure. A person subject to such an order has to submit to a judicial screening before any intended legal action by him can be pursued. The rationale for such measure was examined by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473. In essence, the Court of Final Appeal held that the right of access to the court is subject to the power of the court to adopt proportionate measure in preventing the abuses of its own process. In the words of the Chief Justice in Ng Yat Chi at Para. 5,

‘The pursuit of abusive proceedings would be an improper exercise of the right of access and may be regarded as adversely affecting the right of access of others with meritorious cases.’

Bokhary PJ said at Para. 25,

‘[The court] is not a place for inflicting vexation or wasting the resources available to the judiciary for serving those who seek justice at its hands. To protect others from vexation and its resources from wastage the judiciary can constitutionally curb the private litigation court access of persons who have a history of initiating such litigation vexatiously.’

A more detail discussion can be found in the judgment of Ribeiro PJ at Paras. 73 to 76.

[30] The evils of abusive proceedings were identified by the Court of Final Appeal as follows (see the Chief Justice at Paras. 3 and 4; Ribeiro PJ at Paras. 52 and 53),

(a) Unfair oppression and stress (including financial pressure) caused to the opposite party or parties;

(b) Wastage of limited judicial resources.

[32] A Section 27 order is obviously more draconian than a restricted proceedings order [‘RPO’] or a restricted applications order [‘RAO’] under Practice Direction 11.3. Given the rationale for such measure, the court must be satisfied that it is a proportionate remedy to the abusive litigious activities of the defendant before such order is made. See Bhamjee v Forsdick [2004] 1 WLR 88.

[33] The expression ‘habitually and persistently’ involves an element of repetition. Although it needs not be over a long period of time, it is essential to establish a course of repetitious abusive conducts in the whole history of the defendant’s litigious activities. Whilst in many cases, the activities focus on a particular adversary or a particular grievance, repetition can also manifest itself in the form of a number of unfocused vexatious claims against a wide range of persons (see AG v Barker [2000] 1 FLR 759; AG v Covey [2001] EWCA Civ 254 Para. 54). In this respect, the scope of Section 27 is wider than RAOs or RPOs.

[34] At the same time, in some cases, even though the number of separate actions is quite small, if the whole circumstances and history of the litigious activities demonstrate an attempt to re-litigate an issue already conclusively determined, coupled with such attempts being pursued in a vexatious manner (e.g. with extravagant, scandalous or wild allegations without any prospect of the same being justified), the requirement of that expression can also be satisfied (see Brogden v AG [2001] NZCA 208 at [21]; AG v Weston [2004] VSC 314 at [21]).

[37] Vexatious legal proceedings are regarded as abuse of process. As the Chief Justice pointed out in Paragraph 6 of the judgment in Ng Yat Chi, the categories of abuse of process are never closed. The element of vexation in legal proceedings can likewise take as many forms as human ingenuity may devise. It should be noted that the description ‘vexatious’ in the context of Section 27 has a wider meaning that given to the same word in the context of Order 18 Rule 19 of the Rules of the High Court. In Gallow v AG (Victorian Full Court, unreported, 4 Sept 1984, cited by Smith J in AG v Knight [2004] VSC 407 at Para. 5), the court held,

‘In the light of the mischief to which the section is directed however it seems to me that the word ‘vexatious’ is not in this context a term of art and is an omnibus expression which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the Court. All of such and similar proceedings in my opinion, fall within the meaning of the word ‘vexatious’ in the statute.’

[38] There have been attempts to set out some of the usual characteristic of vexatious proceedings in the authorities, some of which were set out in Ng Yat Chi (see Paras. 2, 48 to 50). Useful guidance can also be found in the following dictum quoted by Whelan J in AG v Weston [2004] VSC 314 at [14] and [15],

(a)  Proceedings can be regarded as vexatious if,

‘(1)  they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or

(2)  they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; or

(3)  irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.’

(per Roden J in AG v Wentworth (1988) 14 NSWLR 481 at 491)

…

[39] Another often cited dicta is that of Lord Bingham CJ (as he then was) in AG v Barker [2000] FLR 759 at 764,

‘‘Vexatious’ is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.’

[40] But these judicial statements should not be regarded as exhaustive definition of vexatious proceedings. Given the infinite wisdom of a litigant, there is always scope for new forms of vexatious proceedings. Vexation can stem from the motive of the litigant, the merit of the claim or the manner in which the claim is prosecuted. Re-litigation of a subject that has been finally determined is a common feature, but there are vexatious proceedings which do not seek to re-litigate…

[41]  In dealing with a Section 27 application, the court is not re-opening the previous proceedings which are said to be vexatious. Ordinarily, the vexatious nature should be apparent from reading the reasoned judgment and orders made in those proceedings (see AG v Jones [1990] 1 WLR 859 at p. 863 D to F; AG v Kay [2000] VSCA 176 at Para. 1; AG v Lawal [2004] EWHC 816 (Admin); AG v Pepin [2004] EWHC 1246 (Admin)). Section 27 application is not an occasion for a defendant to re-open holdings against him or her in the previous proceedings. Hence, unless there are special reasons for reference being made to pleadings or other documents filed in the previous proceedings, the fact that such proceedings had been struck out by the court is good evidence of the vexatious nature of those proceedings.”

33.There are 3 conditions which must be satisfied before the Court of First Instance may make a Section 27 Order:

(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.

34.In the present case, the 1^st and 3^rd conditions can plainly be satisfied:

(1) In respect of the 1^st condition, the application is made by the Director, who is or has been a party to the proceedings instituted by the Applicant (namely, HCAL 709/2018, CACV 15/2019 and HCAL 411/2021), and/or has directly suffered adverse consequences resulting from those proceedings within the meaning of s 27(5)(b) of the High Court Ordinance. For the present purpose, I shall disregard the proceedings in FAMV 221/2019 because those proceedings were not instituted “in the High Court or in any inferior court” as mentioned in s 27(2)(a) of the High Court Ordinance.

(2) In respect of the 3^rd condition, the Section 27 Application was duly served on the Applicant, and she has been given an opportunity to file evidence and make submissions in opposition to that application.

35.In respect of the 2^nd condition (“habitually and persistently and without any reasonable ground instituted vexatious legal proceedings”):

(1)  As pointed out in the judgment of J Lam J in Ma Kwai Chun, ante, at §§33-34, “habitually and persistently” involves an element of repetition, but it does not need to be over a long period of time. Also, even though the number of separate actions may be quite small, the repetitious conduct may be regarded as habitual and persistent if the whole circumstances and history of the litigious activities demonstrate an attempt to re-litigate an issue already conclusively determined, coupled with such attempts being pursued in a vexatious manner (eg allegations made without any prospect of the same being justified). In Tse Jeeken v Hong Kong Alliance in Support of Patriotic Democratic Movement of China [2001] 1 HKLRD 132, Chung J held, on the fact of that case, that two sets of proceedings on the same subject matter brought in 1998 and 2000 respectively were sufficiently “habitual and persistent” to justify the making of a prohibitive order.

(2)  As for the meaning of the expression “vexatious legal proceedings”, it can be seen from §§37-40 in Ma Kwai Chun that proceedings may be regarded as vexatious if they disclose no reasonable cause of action, are an abuse of the process of the court, are brought for collateral purposes, are so obviously untenable or manifestly groundless as to be utterly hopeless, or have little or no basis in law.

(3)  In Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1, Ribeiro PJ, speaking of litigants who vexatiously abused the process of the courts, had this to say:

“[47]  It is unfortunately the experience of the courts in many jurisdictions that problems caused by litigants who repeatedly abuse the court’s process are on the increase. I shall refer to such litigants as ‘vexatious litigants’, including within such class, not merely those who have formally acquired the statutory status of vexatious litigant by order of the court (in Hong Kong, pursuant to s 27 of the High Court Ordinance, Cap 4 – ‘HCO, s 27’), but more generally, those who persistently engage in the abuse of the court’s process.

[48]  There are many variants of such abuse and of what motivates it. It may represent a calculated attempt by a defendant to delay an inevitable judgment or its execution… Sometimes the vexatious conduct springs from some deeply-felt sense of grievance left unassuaged after unsuccessful litigation. The vexatious litigant typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis…”

(4)  In other words, repeated actions evidencing a calculated attempt by a defendant to delay an inevitable judgment or its execution, or a refusal to accept the unfavourable final result of a litigation, or seeking to re-open matters already determined in a previous action, may be regarded as vexatious legal proceedings for the present purpose.

(5)  The consideration of finality of judicial process is a matter of particular importance in the context of the present case.

36.In my view, the 2^nd condition for making a Section 27 Order against the Applicant is also satisfied in the present case, taking into account the following circumstances:

(1)  Her applications in HCAL 709/2018, CACV 15/2019 and HCAL 411/2021 are all obviously untenable or manifestly groundless as to be utterly hopeless, and constitute an abuse of the court’s process.

(2)  The applications all relate to the same subject matter, namely, the rejection of her non-refoulement claim based on an allegation that, were she to return to Indonesia, she will be at risk of harm by Sulis or those working under him.

(3)  The present application manifests a refusal by the Applicant to accept the unfavourable outcome of the rejection of her non-refoulement claim, even though the same has been finally and conclusively determined by the Court of Final Appeal’s dismissal of her application for leave to appeal the 1^st CA Decision.

(4)  The applications are also evidence of an intention on the part on the Applicant to delay the outcome of the CFI Judgment.

(5)  The whole circumstances and history of the applications amount to institution of vexatious legal proceedings on a habitual and persistent basis by the Applicant.

37.Making a Section 27 Order against the Applicant is a proportionate response in the circumstances of this case, taking into account the fact that the Applicant is not absolutely barred from commencing actions in relation to her non-refoulement claim, but may be permitted to do so with leave of the court.

38.In all, this is a proper case for the court’s exercise of its discretion to make a Section 27 Order against the Applicant.

DISPOSITION

39.The Applicant’s application for leave to apply for judicial review in HCAL 411/2021 is dismissed.

40.The Director’s application for a Section 27 Order against the Applicant is allowed, in the following terms:

(1)  no legal proceedings relating to any non-refoulement claim of the Applicant shall be instituted by her without leave of the Court of First Instance;

(2)  no other legal proceedings relating to any non-refoulement claim of the Applicant previously instituted by her shall be continued by her without leave of the Court of First Instance;

(3)  any application by the Applicant for leave to institute or continue legal proceedings relating to any non-refoulement claim of the Applicant 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 Applicant 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.

41.Ms Chan (for the Director) also asks for the costs of the Director to be paid by the Applicant, while recognizing that in practice the Director may not be able to recover any costs which the Applicant may be ordered to pay. It seems to me that, as a matter of principle, the court should exercise its discretion to order costs against the Applicant in respect of the application for leave to apply for judicial review (which I consider amounts to an abuse of process of the court) and also the Section 27 Application. The costs are summarily assessed at HK$27,606 and HK$66,149 respectively, making a total of HK$93,755.