Case Document

100%Judiciary

HCAL 409/2021 &
HCMP 603/2021

[2021] HKCFI 1610

HCAL 409/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 409 OF 2021

________________________

BETWEEN
	MD HASNAIN	Applicant
and
	DIRECTOR OF IMMIGRATION	Putative Respondent
________________________

AND

HCMP 603/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 603 OF 2021

________________________

BETWEEN
	DIRECTOR OF IMMIGRATION	Plaintiff
and
	MD HASNAIN	Defendant
________________________
	(Heard together)

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

Date of Hearing:	1 June 2021
Date of Decision:	1 June 2021
Date of Reasons for Decision:	9 June 2021

___________________

REASONS FOR DECISION

___________________

INTRODUCTION

1.There were 2 applications before the court:

(1) an application by Mr MD Hasnain (“the Applicant”) for leave to apply for judicial review of the decision of the Director of Immigration (“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”); 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 him 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 him shall be continued by him without leave of the Court of First Instance.

2.The Applicant failed to appear at the hearing of the applications on 1 June 2021, and the court proceeded to hear the applications in the absence of the Applicant, having been satisfied that notice of the hearing had been given to the Applicant. At the conclusion of the hearing, the court dismissed the Applicant’s application for leave to apply for judicial review and granted the Director’s Section 27 Application with costs (which were summarily assessed) with reasons to be given later, which I now do.

BACKGROUND FACTS

3.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. He did not depart Hong Kong upon the expiry of his limit of stay, 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 (“the Original Claim”) on the basis that if he returned to India, he would be harmed or killed by a “good friend” (“Riyaz”, or “RY”) for failing to repay a loan to Riyaz. A removal order was made against the Applicant on 22 October 2015. He did not appeal against the removal order.

4.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, for the following reasons:

“In his decision the Director considered the dispute between the applicant and RY a private monetary matter that in the absence of any involvement of the state or police in RY’s threats and conducts that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (‘COI’) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Delhi or Mumbai where it is beyond the capability or resources of RY to locate him.”[1]

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

6.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).

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

“In its decision the Board found that the applicant has failed to show that he faces a real or genuine risk of harm from RY as claimed, and that any such risk is confined to his local area that it would not be unreasonable for him to relocate elsewhere in India, and concluded that his claim for non-refoulement protection fails on all applicable grounds.”[2]

FIRST SET OF JUDICIAL REVIEW PROCEEDINGS

8.On 24 November 2017, the Applicant filed a Form 86 in HCAL 953/2017 to challenge the Board’s Decision. In his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

(1)  Lack of legal representation in the appeal to the Board.

(2)  Lack of language assistance in that he was not provided with a written translation of his non-refoulement claim form (“NCF”) to enable him to find out whether the interpretation was correct.

(3)  The Board had given undue weight on country of origin information (“COI”) that showed recent efforts in India to tackle police corruption, when there were other COI showing police and government malpractices still existed.

(4)  There was no fair hearing in that the Board failed to give reasons for not requiring the attendance of the Director at the appeal.

9.The application for leave to apply for judicial review came before Deputy High Court Judge Bruno Chan at an oral hearing as requested by the Applicant. The Applicant failed, however, to turn up at the hearing, which proceeded in his absence[3]. On 20 July 2019, the learned Deputy Judge refused to grant leave to the Applicant to apply for judicial review of the Board’s Decision (“the CFI Decision”), for the following reasons:

“[14] For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

[15] The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

[16] As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

[17] As for ground (3) over the Board’s improper reliance of COI in its assessment of effectiveness of police and law enforcement in India, it is in my view inappropriate for the applicant to just extract paragraph 53(A)(f) from the decision out of context from the rest of paragraph 53(A) which was meant to be read together, and which I did with close examination and do not find any basis for this complaint of the applicant.

[18] As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

[19] The fact is that once it has been found and established by both the Director and the Board in their decisions that the risk of harm from RY is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

[20] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”[4]

10.On 31 July 2018, the Applicant filed a Notice of Appeal in CACV 353/2018 against the CFI Decision. The following grounds of appeal were raised in the Notice of Appeal:

(1) The applicant would face hardship if he were to return to his home country.

(2) The Board relied on news that was not officially recognised or was simply hearsay. There was also reliance on cases that were outdated considering the dramatic changes. The lack of credible source of information had resulted in the making of groundless speculations.

11.On 20 December 2018, the Court of Appeal (constituted by Cheung, Chu and Barma JJA) dismissed the appeal (“the 1^st CA Decision”, [2018] HKCA 982). At §§11-13, the Court of Appeal gave the following reasons for the 1^st CA Decision:

“[11] The thrust of the applicant’s grounds of appeal is directed at the Board’s assessment of the risk of the applicant being subjected to harm or ill-treatment if refouled to India. The applicant has not pointed to any error in the Judge’s reasons or decision.

[12] This Court has repeatedly emphasised that judicial review does not operate as a rehearing of a non-refoulement claim. Assessment of the merits of the applicant’s claim is a matter for the Board and the Director, who are the primary decision-makers. In judicial review, the Court exercises a supervisory jurisdiction and is concerned with reviewing the legality and rationality of the decision under challenge and the propriety of the process by which the decision is arrived. The Court will not assume the role of the Director and the Board as the primary decision makers to re-assess the merits of the applicant’s claim. Further, the focus of appeals in the Court of Appeal is on the correctness of the judge’s decision. Unless it can be shown that there are errors in the judge’s decision, the Court of Appeal will not disturb the judge’s decision.

[13] The applicant’s grounds of appeal are therefore misplaced and provide no basis for us to interfere with the Judge’s decision. We would further point out that the complaints in the grounds of appeal have no substance in that they are only general assertions with no particulars.”

12.On 2 January 2019, the Applicant applied for leave to appeal the 1^st CA Decision. In the Notice of Motion, he stated:

“I would like to [inform] 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 favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and [court] prefers to ignore the [overwhelming] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is [betray] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

13.On 4 March 2019, the Court of Appeal dismissed the Applicant’s application for leave to appeal (“the 2^nd CA Decision”, [2019] HKCA 200), for the following reasons:

“[5] The written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required. It also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner. It further referred to section 37ZT and argued that, in cases of late filing of notice of appeal, the Board may only take account of (a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge.

[6] All the matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b). Secondly, we had in [11] to [13] of our Judgment pointed out that it is not the court’s function in judicial review and on appeal to assess the merits of the claim and the risks claimed by the applicant. The complaint against the Board’s evaluation of the country of origin information is therefore misplaced.

[7] We also do not see any basis for granting leave on the ‘otherwise’ limb under section 22(1)(b).”

14.The Applicant 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 (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

15.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. By a letter dated 29 January 2020 to the Director, the Applicant stated that he wished to go back to his home country (India) 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 letter dated 20 February 2020 to the Director, the Applicant sought to make a subsequent claim under s 37ZD of the Immigration Ordinance (“the 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 (“DLS”) 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.

16.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.”

17.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

18.On 22 February 2021, the Director refused to permit the Applicant to make a subsequent claim (“the Decision”). The reasons for the Decision have been summarized in the Affirmation of Yiu Fung Yee, Senior Immigration Officer, who interviewed the Applicant and made the Decision on behalf of the Director:

“[26] On 22 February 2021, having carefully assessed the Request based on the available information, I decided to refuse the Request since it was not accepted 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. The [Decision] was therefore issued to the Applicant via the DLS.

[27] In reaching the decision to refuse the Request, I took into account, amongst others, the following:

(a) The findings made by the immigration officer and the Board in refusing the [Original Claim] as permitted under section 37ZO(3) of the Ordinance: §7 of the [Decision]…

(b) The primary basis of the claimed threats mentioned in the Request related to the same dispute with Riyaz as in the [Original Claim]: §§7, 23-25, 35 of the [Decision].

(c) The Applicant’s credibility is in doubt:

(i) Under the apparent mistaken belief of the Applicant that the Board had rejected his claim based on his political activism in the [Original Claim], the Applicant stated in his written request to make the Request that his claim for non-refoulement protection was based on risks which he faced as a result of his political activism, and that he ‘relied and continued to rely on the factual background as set out in the [previous decisions of the Director dated 20 November 2015 and 21 February 2017], which in fact concerned his loan dispute with Riyaz only: §31 of the [Decision].

(ii) The Applicant’s explanation in the interview on 17 February 2021 that the written request to make the Request was not written by the Applicant himself and was not read to him was not accepted and his credibility was in doubt: §31 of the [Decision].”

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

19.On 23 March 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Decision, and sought an order of certiorari to quash the Decision. The Applicant also requested for an oral hearing of the leave application if leave to apply for judicial review was not granted on paper.

20.The Form 86 did not set out any grounds on which relief was sought. In the supporting affirmation dated 23 March 2021, the Applicant merely stated:

“I do solemnly and sincerely affirm the matter before me are true nothing but the truth. This affirmation for leave to Judicial Review against the Director of Immigration YIU Fung-Yee, who refuse my Subsequent Claim, as well as the director of immigration, who rejected my Subsequent claim which made under Part VII C of the Immigration Ordinance Risk of Torture ‘CIDTP’” [sic]

21.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.”

22.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.

23.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.

24.First, the Applicant has failed to set out any 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.

25.Second, the Applicant’s affirmation in support of the application likewise fails to set out any proper ground of judicial review of the Decision.

26.Third, for the reasons given in the Decision, I consider that 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.

27.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)

28.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.”

29.There are 3 conditions which must be satisfied before the Court of First Instance may make an order (“Section 27 Order”) under s 27 of the High Court Ordinance:

(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.

30.In this court’s decision in Director of Immigration v Etik Iswanti [2021] HKCFI 1589 also handed down today, the court considers a similar application and sets out, at §§32 and 35 of that decision, some relevant principles in relation to an application under Section 27 of the High Court Ordinance. I shall not repeat those paragraphs in this decision (which shall be treated as incorporated herein), and shall apply the relevant principles there set out to the present case.

31.In my view, the 3 conditions for the exercise of the court’s discretion to make a Section 27 Order against the Applicant are satisfied in this case.

32.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 953/2017, CACV 353/2018 and HCAL 409/2021), 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 76/2019 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.

33.In respect of the 2^nd condition:

(1)  The Applicant’s applications in HCAL 953/2017, CACV 353/2018 and HCAL 409/2021 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 his non-refoulement claim based on an allegation that, were he to return to India, he would be harmed or killed by Riyaz.

(3)  The present application manifests a refusal by the Applicant 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.

(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.

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

35.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 his non-refoulement claim, but may be permitted to do so with leave of the court.

36.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

37.The Applicant’s application for leave to apply for judicial review in HCAL 409/2021 is dismissed.

38.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 him 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 him shall be continued by him 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.

39.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$29,735 and HK$68,273 respectively, making a total of HK$98,008.