Director of Immigration v. Selamet Hariyanti

HCMP 1620/2021

[2022] HKCFI 675

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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Before: Hon Coleman J in Chambers (Open to Public)

Date of Application:  21 February 2022

Date of Decision: 8 March 2022

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D E C I S I O N

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A. Introduction

1.In my Decision dated 31 January 2022 [2022] HKCFI 195, I made an order under section 27 of the High Court Ordinance Cap 4 (“section 27 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.The Defendant attended the hearing in person, but she had filed no written submissions.  The Court was not notified in advance that an interpreter would be needed so there was no Court interpreter on that day.  But as recorded at §4 of my Decision, I did ask if the Defendant was happy to proceed in English without an interpreter and she confirmed that she was.  In any event, she made no oral submissions in the end.

3.In my Decision, I rehearsed the long procedural history of the Defendant’s non-refoulement claim and found (at §20) that she has habitually and persistently and without any reasonable ground instituted vexations legal proceedings.  I also found it striking (at §§21-22) that apparent care was given to ensure that the right forms were filled in and filed with the Court to enable her case to advance level by level through the appellate system, but the Defendant did not identify the right decision against which she was seeking to review/appeal at each level of Court, which were classic examples of judicial proceedings which are manifestly groundless and clearly untenable.  Viewing her overall litigation conduct as a whole, I was of the view that the Defendant intentionally sought to keep her case alive in the judicial system with the purpose of delaying her deportation from Hong Kong.

4.The terms of the Order made (in the Decision and Corrigendum) were that:

(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 1588/2020) 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.

5.I also ordered costs to follow the event, summarily assessed at HK$40,000.

B.      New Application

6.As stated, my Decision was handed down on 31 January 2022.

7.On 21 February 2022, the Defendant filed a Form 27A, which is the Notice of application for leave to institute or continue proceedings in court.

Title and reference number of the proceedings in which the order under section 27(1) of the High Court Ordinance (Cap.4) was made	APPLICATION FOR LEAVE TO INSTITUTE OR CONTINUE PROCEEDINGS TO THE FOLLOWING COURT ACTION NO. HCMP 1620/2021, DECISION DATED 31 JANUARY 2022.
Order sought	APPLICATION FOR LEAVE TO APPEAL AGAINST ORDER UNDER SECTION 27 OF THE HIGH COURT ORDINANCE, CAP 4
Previous applications for leave which the applicant has made under section 27 of the High Court Ordinance (Cap. 4), and the results of those applications	PREVIOUS APPLICATION FOR LEAVE FOR JUDICIAL REVIEW, AGAINST THE DIRECTOR’S DECISION FOR MY SUBSEQUENT CLAIM, IN FORM 86, HCAL 1588/2020.

8.However, it is difficult to see what exact order or relief the Defendant was seeking.  The relevant part of her form is reproduced below (upper case in original):

9.She may be seeking leave to institute or continue with a non-refoulement related claim pursuant to the order made in §23 of my Decision.  But she does not indicate whether leave was sought for the institution of a new proceeding or for continuing with HCAL 1588/2020, which was the latest judicial review application instituted by her before the section 27 Order was imposed on her.  In HCAL 1588/2020, she sought leave to review the Director’s refusal for her to file a Subsequent Claim after her original claim had already lost all the way up to the CFA.

10.It also appears that she may be seeking leave to appeal against the section 27 Order itself.

11.Nor did her affirmation clarify the order or relief she intends to seek.  In the affirmation, she wrote by hand (upper case in original):

THIS IS AN AFFIRMATION FOR LEAVE TO APPEAL AGAINST THE DECISION DATED 31 JANUARY 2022 TO BE ORDER AGAINST ME SECTION 27 OF THE HIGH COURT ORDINANCE, CAP 4 ORDER FILED ON 21 OCTOBER 2021, SEEKING FOR LEAVE AGAISNT ORDER UNDER SECTION 27, CAP.4

12.There is a typed-up document titled “Grounds for Leave for Commencing Proceedings against Section 27 of the High Court Ordinance, Cap. 4” which is supposed to be part of the affirmation.  My observations on or summary of her affirmation are as follow:

(1)  Apparently the Defendant has mistaken my Decision in HCMP 1620/2021 as the decision for her leave application in HCAL 1588/2020.  She said she did not understand why the case number would change from HCAL 1588/2020 to HCMP 1620/2021.

(2)  She said she did have new information for filing a Subsequent Claim, namely that her mother was mentally tortured by her creditor and has now passed away.

(3)  She emphasized the threat and danger to her life if she was to return to Indonesia.  She said the Director did not properly evaluate the country of origin information and the assessment that she could be relocated to other cities in Indonesia was wrong.  Nor was the local Indonesian authority able to provide protection to her.

(4)  She did not understand why the section 27 Order is now imposed on her in the Decision.  The law allowed her to bring her previous claim from CFI all the way up to CFA.  What she did was legal.  But she does understand that the effect of the order is to stop her from institution or continuing with legal proceedings without the permission of the Court.  She asked for permission to be granted based on merits.

(5)  She said that she has no income or property, and is currently supported by International Social Service and is unable to meet the costs order.  She, in essence, asked the Court to vary the costs order in the Decision to one of no order as to costs.

(6)  She said she spoke very little English. On the hearing on 30 December 2021, she only agreed for the hearing to proceed in English out of her respect for the Honourable Court.  She did not understand the exchange between the Court and the Director’s Counsel.  She made no oral submissions because she was not prepared and was scared.

13.The only additional supporting document attached was my Decision.

C.      Whether to Grant Leave

14.If the Defendant’s intention is to appeal against the Decision, i.e. the section 27 Order itself, this time she has filed the wrong form and to the wrong Court Registry.  I did not expressly impose the leave requirement on an appeal against the Decision itself.  On that basis, the application should be dismissed on this ground alone.

15.In any event, even if she had filed the right form into the right Court Registry, I think the Court of Appeal would have found no assistance in any of the materials she provided.  There is nothing in the materials which are directly relevant to whether the section 27 Order should have been made.  The fact that she was not assisted with an interpreter in the oral hearing could not assist her.  At the oral hearing, the Director’s Counsel solely relied on her written submissions which were provided in advance to the Defendant.  Nor did the Defendant, having seen that the materials were in English, request the Court to provide her with an interpreter before the hearing – and she expressly said she was content to proceed at the hearing without an interpreter.

16.If the Defendant intended to seek leave to continue with HCAL 1588/2020 or to institute another non-refoulement related proceeding, she has managed to file the right form, as she did with her 5 sets of previous proceedings.  But again, filing the right form is not of itself sufficient. The suggestion that her intended Subsequent Claim was based on new facts has been addressed at §20 of my Decision.  The Director considered that the claim was still broadly based on the same set of facts as her original claim and did not amount to a “significant change of circumstances”.  Her repetition as to the threat and danger in her home country, the country of origin information, the availability of relocation and the lack of local protection did not feature in the Director’s rejection of her Subsequent Claim.  These are but further evidence to show her tendency to re-argue the same points at every judicial avenue, and her failure to identify the right decision against which leave is to be sought.

17.I see no reason to grant leave to allow the Defendant either to continue with HCAL 1588/2020 or to institute a new non-refoulement related proceeding.

18.Further, in light of my view of the materials provided even in this application – and following the recent Court of Appeal decision in [2022] HKCA 327 – I will of my own motion make a restrictive proceedings order – in addition to, and to extend, the section 27 Order – to encompass any appeal (including any appeal against the section 27 Order itself).

19.For the sake of completeness, I see no reason to vary the costs order made in the Decision.  She has provided no new information which was unknown to the Court at the time of the 30 December 2021 hearing.

20.I make no order as to costs for this application.

The defendant, acting in person