Case Document

100%Judiciary

HCMP 1473/2021

[2022] HKCFI 498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1473 OF 2021

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IN THE MATTER of Section 27 of the High Court Ordinance, Cap. 4

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BETWEEN
	DIRECTOR OF IMMIGRATION	Plaintiff
and
	BANSILES JAMAICHA BAGUINDO	Defendant

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Before:

Hon Coleman J in Chambers (Open to Public)

Date of Application:	10 February 2022
Date of Decision:	16 February 2022

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D E C I S I O N

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A. Introduction

1.By my Decision dated 31 January 2022 [2022] HKCFI 199, I made an order under section 27 of the High Court Ordinance Cap 4 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.The Defendant had been absent at the hearing on 31 December 2021, but I was satisfied that all relevant materials had been duly served on the Defendant and I proceeded with the hearing.

3.In my Decision, I pointed out that the Defendant had followed the usual track and typical litigation history of non-refoulement claimants against whom a section 27 order is sought, attempting to keep her case alive in the judicial system, even after she had 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.

4.I set out (at §§9-20) the detail of the relevant procedural history, starting from the Defendant’s overstaying in Hong Kong since 2007. I found (for the reasons enumerated at §22) that the Defendant has habitually and persistently instituted vexatious legal proceedings. I pointed out (at §§23-24) the stark contrast between (a) the apparent ability to fill in the right forms to keep the appellate process alive and (b) the little thought put into identification of any actual grounds of review or appeal, evidencing that the various proceedings were instituted for the collateral purpose of delaying the Defendant’s removal from Hong Kong.

5.The terms of the Order made in my Decision (and Corrigendum) were:

(1) No legal proceedings relating to any non-refoulement claim of the Defendant shall be instituted by her without leave 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 1746/2020) before the making of this Order shall not 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.

6.I also ordered the costs of the Director to be paid by the Defendant, summarily assessed at HK$35,000.

B. New Application

7.Just 10 days after my Decision, by a Form 27A Notice of application for leave to institute or continue proceedings in court, the Defendant has sought leave to continue with her application in HCAL 1746/2020.

8.In passing, I would note that the application is strikingly similar – both in the handwriting on the actual Form 27A as well as in the ‘grounds’ typed in the separate document said to identify the basis for leave to commence fresh proceedings – to another application issued on the same date in HCAL 1472/2020, on which I will hand down my decision together with the decision on this application.

9.I am satisfied that I can deal with this application on the papers.

10.The stated grounds put forward by the Defendant are broadly that:

(1) she did not receive a hearing from the court about the hearing date of 31 December 2021, and apologised for failing to attend;

(2) I did not consider that she would face serious risk of harm upon refoulement;

(3) her underlying claim is genuine, and though previously her claim was denied right through to the CFA, she is “seeking protection in this terrific situation all over the world including my country of origin conditions”;

(4) the reasons why she had applied many times to the Director, the Board, the CFA, the CA and the CFA, and then began her Subsequent Claim and later application for leave to apply for judicial review was because of fear that her life is in danger, and the proceedings were provoked by threat of removal from Hong Kong;

(5) she is not satisfied with the previous assessment of her claim, because even if her fear is a personal problem, harm is always dangerous for life;

(6) she was unable to pay the ordered costs, because she is an asylum seeker fully supported by International Social Service, without income or work or property; and

(7) prayed and hoped for the grant of leave to allow her to file a notice of appeal.

11.Attached to the ‘grounds’ document is a copy of my Decision, and a copy of an article in ‘The Sun Hong Kong’, from which the Defendant says she became aware of the Decision.

C. Disposition

12.There is nothing in the application and supporting documents which suggests to me that any different order would have been made in my previous Decision, even had the Defendant attended the hearing.

13.Indeed, the Defendant continues to focus on her previous underlying claim to non-refoulement protection, which has been addressed on numerous previous occasions through the Board and the Court’s appellate process.

14.As regards the suggestion that there are merits in her Subsequent Claim, I have already pointed out in my Decision (at §§18-19) that having made the Subsequent Claim only a week or so after the CFA dismissed her application, the Defendant then applied for an extension of time on 11 occasions to submit further evidence, but failed to do so. When the Director considered that there was no significant change of circumstances which would give the intended subsequent claim any realistic prospect of success, the Defendant’s intended challenge to that decision brought in HCAL 1746/2020 failed to identify any proper intended grounds of review.

15.Against the procedural history, and on the materials before the Court, I see no reason to lift or suspend the effect of my previous Order made under section 27. The present application is dismissed, with no order as to costs.