Director of Immigration v. Selamet Hariyanti

HCMP 1620/2021

[2022] HKCFI 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1620 OF 2021

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D E C I S I O N

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A. Introduction

1.This is the Director’s application under section 27 of the High Court Ordinance Cap 4 for an order prohibiting the Defendant from instituting or continuing with legal proceedings relating to any non-refoulement claim without the leave of the Court of First Instance (“CFI”).

2.This application is one among the many brought by the Director recently to curb unsuccessful non-refoulement claimants’ attempt to keep theirs cases alive in the judicial system, even after they have exhausted all available judicial procedures to overturn the decision of the Torture Claim Appeal Board/Non-refoulement Claims Petition Office (“the Board”) by way of judicial review.  In [2022] HKCFI 197, handed down at the same time as this Judgment, I have rehearsed at §§3-8 the typical litigation history of these non-refoulement claimants against whom a section 27 order is sought.

3.This claimant has followed that usual track.

4.The Director was represented by Ms Jenny Cheung, Senior Government Counsel (Ag.).  The Defendant acted in person.  In the hearing on 30 December 2021, Ms Cheung confirmed that all relevant materials had been provided to the Defendant.  The Defendant confirmed that she was happy to have the hearing proceed in English without an interpreter.  She did not file any written materials to resist the application before the hearing.  Nor did she make any oral submissions during the hearing. Judgment was reserved at the conclusion of the hearing and this is the Judgment.

B.      The Law on a Section 27 Application

5.The legal principles on an application under section 27 have been recently visited by Chow JA (sitting as a CFI Judge) in Director of Immigration v Etik Iswanti [2021] HKCFI 1589 at §§31-35.  Chow JA’s judgment could be read in full.  It suffices to offer a brief summary below.

6.Section 27 stipulates 3 statutory conditions which must be satisfied before the Court makes an order under the section:

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

(2)   the person against whom the order is sought has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(3)   the Court has heard the person against whom the order is sought or has given him an opportunity of being heard.

7.The meaning of “habitually and persistently and without any reasonable ground instituted vexatious legal proceedings” in the second condition was explored by Chow JA at §35:

(1)   The concept of “habitually and persistently” involves an element of repetition.  But the repetitions do not have to occur over a long period of time.  Nor is the fact that the number of separate actions are quite small a bar to the finding of habitual and persistent repetition.  It is sufficient if the repetitious conduct, viewed in the whole circumstances, demonstrates an attempt to re-litigate an issue already conclusively determined.

(2)   “Vexatious” legal proceedings come in many different forms or variants.

(3)   Proceedings could be regarded as vexatious if they disclose no reasonable cause of action, are an abuse of the court process, are so obviously untenable or manifestly groundless as to be utterly hopeless or have little or no basis in law.  The fact that proceedings are struck out by the court is good evidence of their vexatious nature.

(4)   Proceedings could also be regarded as “vexatious” if they are brought for collateral purposes.  These include calculated attempts by a defendant to delay an inevitable judgment or its execution.

(5)   Proceedings demonstrating a refusal to accept the unfavourable final result of litigation, and which are brought to re-open such matters finally determined, are also example of vexations proceedings.

(6)   Ordinarily, the vexatious nature of such proceedings should be apparent from reading the reasoned judgments and orders made in those proceedings.  It is not necessary to refer to the pleadings or other documents in those proceedings.

8.A section 27 order encroaches on a person’s right to access the court, but that right is not absolute.  Persons who habitually and persistently institute vexations legal proceedings have unfairly taken up a disproportionally large amount of judicial resources which would affect other people’s right to access the courts.  A section 27 order is also not an absolute ban on access to court, and leave will be granted by the Court if the proceedings to be instituted are meritorious.

C.      The Defendant’s Litigation Conduct

9.The Defendant is an Indonesian national.  She first entered Hong Kong in 2012 as a foreign domestic helper.  She did not leave upon the expiration of her visa in April 2015.  She was arrested for overstaying in October 2016.  Her non-refoulement claim was only raised when the she was caught for having overstayed in Hong Kong for 1½ years.  The Defendant’s claimed fear comes from her husband and his creditors.  After her visa expired in 2015, she had a relationship with a Hong Kong resident and when her husband in Indonesia heard about that, he threatened to kill her when she returns.  She also claimed that her husband’s creditors would harm or rape her if she returns.

10.The claim was rejected by both the Director and the Board in 2017.  In the Board’s reasoned decision, whilst the Board accepted that the Defendant had a subjective fear, such mental anguish fell much below the required standard.  More importantly, the Board did not believe that the husband had physically abused her in the past or had caused or would cause his creditors to harm or rape her.  The Board was also satisfied her husband would not be able to locate her if she relocates to big cities like Jakarta.

11.In HCAL 1024/2017, the Defendant sought leave to apply for judicial review of the Board’s decision and the Director’s decision.  Deputy High Court Judge Bruno Chan refused leave, saying:

11.       On 7 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following ground for her intended challenge:

(1)        procedural impropriety for failing to conduct sufficient independent inquiry into and critical analysis of COI in the consideration of her claim;

(2)        procedural impropriety for failing to provide adequate reasons for preferring COI materials that support their decisions over those that do not support their conclusion;

(3)        procedural impropriety for cherry picking COI materials to support their conclusions;

(4)        error/misdirection in law for failing to apply proper principles in their assessment of effectiveness of state protection for its citizens;

(5)        error/misdirection in law for failing to consider the psychological impact of the facts raised in her claim including the injuries and abuses and other threats against her to repay her husband’s loan to his creditors; and

(6)        irrationality/illegality for taking into account of irrelevant considerations including the fact that she did not seek medical treatments for her injuries without considering her limited financial condition and for treating her claim as a private and personal dispute.

12.       These are however mostly just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.By Notice of Appeal filed on 21 September 2018, the Defendant appealed to the Court of Appeal (“CA”) in CACV 469/2018. Her grounds of appeal are quoted at §8 of the judgment:

(1)        The law required the Torture Claims Appeal Board to consider my case entirely afresh including making his own independent assessment of the relevant country conditions and examining how they related to the concept of state acquiescence. This would have required him to obtain all relevant country of origin information and make the assessment himself. Instead, the Appeal Board in his decision merely made reference to all the papers and the evidence given by me ‘in assessing’ my claim.

(2)        Failing to enquire into the effectiveness of the steps taken by the country of origin into combating violence and terror inflicted by loan shark against vulnerable persons such as my claim and to consider whether or not there had been a failure of due diligence on the part of the country of origins national and local authorities so as to make the state and its officials responsible under the convention against torture (see paragraph 18 UN General Comment No.2 issued by the United Nations Committee Against Torture).

13.Her grounds of appeal focused on the Board’s decision when the subject of an appeal at the CA level should be the CFI judgment.  The CA ruled that:

13.       With the aforesaid principle in mind, we find that the applicant has failed to put forward any viable ground of appeal.  She has failed to identify any error in the Judge’s decision.  She just repeated the basis of her non-refoulement claim which were duly considered and rejected by the Judge….

14.The Defendant then sought leave from the CA to appeal to the CFA.  The grounds set out in the Notice of Motion are quoted in §4 of the CA judgment dated 5 March 2019:

1.         Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin (“COI”) conditions.

2.         Procedural impropriety – failure to give proper reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.

15.The subject of appeal in the CFA level should a decision of the CA.  But the written submissions and affirmation of the Defendant continued to target the Board’s decision.  Therefore, the CA rejected the application at §7 of the judgment.

16.The Defendant then applied to renew her application for leave to the CFA, in FAMV 89/2019.  The application was eventually dismissed by the Appeal Committee for disclosing no reasonable grounds for appeal on 6 January 2020.

17.The Defendant then requested to lodge a subsequent claim in March 2020.  The additional information was that she was told that her husband’s creditors went to her mother’s house to beat up her mother and her brother to force her mother to give up her land in repayment of her husband’s debt on 28 August 2019 and 22 May 2020.  The Defendant was also told that her husband had threatened her mother that the husband would kill the Defendant if her mother did not surrender her land.  By a decision dated 16 July 2020, the Director refused the Defendant’s request.

18.On 30 July 2020, the Defendant filed a Form 86 in HCAL 1588/2020 to challenge the 16 July 2020 decision.  The Form 86 does not identify any ground of review nor the relief sought.  It is a one-page document barely enough to get filed at the High Court Registrar and to get a new action started.

D.      Whether to Grant Order

19.The application is made by the Director who is clearly an affected person and the Defendant did attend the hearing.  The first and the third statutory conditions under section 27 are satisfied.

20.So is the second statutory condition – that the Defendant has habitually and persistently instituted vexatious legal proceedings.  On reading the judgments in the 5 sets of legal proceedings instituted by the Defendant, the following would be easily noticed:

(1)   In the first 4 sets of proceedings concerning the original claim, the same grounds were repeated when the case moved from the CFI to the CFA.

(2)   The “grounds” are broad and vague assertions without any particulars or elaboration on how they apply to the decision the subject of the review/appeal.

(3)   The decision the Defendant sought to challenge remained that of the Board and the Director in all three levels of the courts.

(4)   The CA and CFA did not find any viable grounds since the “grounds” do not even address the decision the proper subject of an appeal before them.

(5)   In the last set of proceedings, that is the latest judicial review leave application against the subsequent claim decision, the Defendant did not even identify the grounds or the relief sought.

21.The Defendant has been litigating the same decision, i.e. the Board’s decision, again and again in all levels of courts, taking several bites of the same cherry.  She is clearly aware of how to fill in and file the right forms to get her case through the appellant system.  But she did not know or did not care to know how the system actually works.  Given that the latest Form 86 filed does not even identify the grounds and the relief sought, one may suspect that she does not care in the result of the application.  She made no submissions in these proceedings.

22.It is readily apparent that she has habitually and persistently instituted proceedings which are manifestly groundless and clearly untenable.  Her conduct of rearguing the same grounds against the same decision in different level of courts demonstrated her obstinate refusal to take “No” for an answer.  Her real purpose is to seek to create on-going judicial proceedings as an impediment to her intended removal, thereby prolonging her unlawful stay in Hong Kong.

E.      Conclusion

23.The Director’s application for a section 27 order against the Defendant is allowed in the following terms:

(1)   No legal proceedings relating to any non-refoulement claim of the Defendant shall be instituted by her without level of the CFI;

(2)   All legal proceedings relating to any non-refoulement claim of the Defendant previously instituted by her (including but not limited to HCAL 1588/2020) before the making of this Order shall be continued by her without the leave of the CFI;

(3)   Any application by the Defendant for leave to institute or continue legal proceedings relating to any non-refoulement claim of the Defendant under Order 32A, rule 2 of the Rules of the High Court, Cap 4A, shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(4)   No more than 1 application under Order 32A, rule 2 of the Rules of the High Court may be made by the Defendant within any period of 3 months;

(5)   This Order shall cease to have effect at the end of 5 years from the date of this order; and

(6)   A copy of this Order shall be sent to the High Court Registry, the District Court Registry, and the Small Claims Tribunal Registry.

24.Ms Cheung also asks for the costs of the Director to be paid by the Defendant.  Whilst the Defendant is currently not permitted to work as a non-refoulement claimant, she worked as a foreign domestic helper for 3 years before her visa expired.  I see no reason why the costs should not follow the event.  The costs are summarily assessed at HK$40,000.

Ms Jenny Cheung, Senior Government Counsel (Ag.), of the Department of Justice, for the plaintiff

The defendant, acting in person