ALI NAYAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 104/2018

[2018] HKCFI 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 104 OF 2018

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REASONS FOR JUDGMENT

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1.  The applicant is an Indian national who entered Hong Kong on 13 September 2013 and was permitted to remain until 27 September 2013. He overstayed and surrendered to the Hong Kong police on 7 October 2013. He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 24 March 2016 and 8 May 2017. The adjudicator of the Torture Claims Appeal Board (“TCAB”) rejected his appeal/petition on 1 June 2017.

2.  The applicant filed his first application for leave to apply for judicial review of that TCAB decision on 8 August 2017 (“1^st application”).  He requested a hearing date and appeared in person before this court on 19 January 2018; a decision was reserved.  This court refused leave to apply for judicial review of that decision on 7 March 2018, see HCAL 491/2017.  It was posted to his same address; he had received and responded to correspondence at that address.

3.  This is the applicant’s second application for leave to apply for judicial review of the sameTCAB decision, this application was filed on 22 January 2018 (“2^nd application”).  That is before he had had a decision from this court for his 1^st application.  The applicant again asked for an oral hearing and I set down a hearing date of 26 March 2018 but the applicant was absent.

4.  On 26 March 2018 I dismissed the 2^nd application and issued a Restricted Proceedings Order (“RPO”) against him with reasons to be handed down at a later date.  I now hand down those reasons.

5.  This applicant was to be heard at the same time on 26 March as three other applicants who had also filed duplicate second applications.  Although all acting in person, their applications were identical in form and in wording as were their affirmations.  Their reasons for delay in filing their applications and their grounds of appeal were almost word for word identical bar one.  That applicant in HCAL 1105/2017 had no choice but to put forward a different ground because, unlike the other three, the adjudicator of his TCAB decision determined his appeal without an oral hearing.  This could not be a coincidence so I set all four second applications down to be heard on the same day and I wrote to all four applicants informing them that it had come to the court’s attention they had made a duplicate second application and the court would hear them first on a preliminary issue of doctrine of res judicata/abuse of process.  I gave them leave to file a further affirmation on this issue.

6.  On 26 March, all four applicants were absent at 10 am.  Attempts to contact all four including this applicant on their mobile telephone numbers they had left on the court files as their contact number unanimously failed.  At 10:25am I dismissed all four, including this applicant’s application.  I issued a RPO against all four applicants.  

THE ISSUES

7.  Several issues arise as a result of the 2^nd application.  Firstly, the 2^nd application is filed late, nearly five months late; such an application should be filed within three months of the date of the adjudicator’s decision according to Order 53, rule 4.  Secondly, the doctrine of res judicata arises.  Is the 2^nd application barred by cause of action estoppel?  The cause of action he is seeking, leave to apply for judicial review has been refused once already.  He does not confirm in his affirmation his 1^st application was refused before he files a second identical application but he asks this court to consider this “present application as a fresh application”.  In any event, by the date of the hearing the 1^st application had been refused.  To seek it again, the exact same action with a new action is prohibited.  Alternatively, is it barred by the Abuse of Process principles pursuant to Henderson v Henderson (1843) 3 Hare 100 which sets out a public policy rule that prevents parties from advancing matters or raising claims and defences that should have been pursued in earlier proceedings but were not so pursued.  Thirdly, in view of the identity of the applicant, an asylum seeker, intentions behind the 2^nd application deserves serious consideration.

BACKGROUND OF THE APPLICANT’S CLAIM

8.  The basis of his claim was that if he was to be refouled to India he would be tortured and killed by two men, Faiyaz and Shah. These men were his maternal uncles and they ran an unlicensed moneylending business.  Both the Director and the adjudicator of the TCAB set out the applicants claim and evidence in full and in detail in their decisions therefore, I only intend to summarise it here.

9.  The applicant was born in 1991, grew up in West Bengal, had 12 years of education and in 2010 joined a leather business. He married in 2012.  In 2003, the applicant’s mother had passed away and prior to her death, her two brothers had lent the applicant’s father Rs.150,000 to settle her medical bills.  In 2009, his father remarried and the two moneylenders then demanded he repay that old loan with interest but he was unable to repay anything but some of the interest.

10.  The applicant said he was the legal owner of the house that they lived in but his father settled the loan by transferring it to the two uncles to settle his debt.  They then charged the applicant’s father rent to live in it.  Not long after, the applicant’s father moved out.  The two uncles demanded the applicant pay Rs.4,000 to rent the house.  He paid it for a few months until he could no longer afford to pay it.  In early 2011, the two uncles demanded the applicant move out or else he would be assaulted.  After that, the applicant was often threatened, visited at night by men harassing him and then on six separate occasions he was beaten up by his two uncles.  On each occasion the injuries he suffered were not severe.  He tried to report them to the police but was ignored as they were rich powerful men.  They were connected to the Trinomial Congress Party.

11.  He lived under enormous stress, had insomnia and suicidal thoughts.  In 2013, his friend suggested he leave India and go to Hong Kong.  He spent Rs.32,000 arranging his journey.  He left India on 12 September 2013.

THE TCAB DECISION

12.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  She correctly set out the law and key legal principles applicable to the four relevant grounds.  She analysed his evidence and found on his own facts that the level of risk of him being subjected to torture or even the risk of death if refouled was low.  When his father moved out, his uncles never asked the applicant to make any loan repayments but only demanded payment of rent.  When he stopped paying rent, they only harassed and assaulted him to try to evict him.  It was not related to the repayment of the loan.  If he has moved out of the house, then they will no longer have any issues with him.

13.  The adjudicator did not believe or accept his evidence that his uncles now demanded repayment of the loan from him; a repayment of five times the value of the original loan.  This was despite the applicant’s father having transferred the house to his uncles many years ago.  This demand has only risen since the applicant has been in Hong Kong.

14.  I set out in detail in HCAL 491/2017 why the adjudicator was not convinced that the applicant fled India in fear of his life.  The adjudicator confirmed the decision of the Director and made a finding the applicant was unable to successfully show he was at risk of torture if he returned to India, nor at risk of ill-treatment under BOR 3 or at risk of a violation of his rights under BOR 2 or had a well-founded fear of being persecuted for a Convention reason.

THE 1^ST APPLICATION – LEAVE TO APPLY FOR JUDICIAL REVIEW REFUSED

15.  I considered the applicant’s three grounds set out in his affirmation and found all grounds to be without merit.  I found no error of law by the adjudicator, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable and there was no realistic prospect of success in the applicant’s application.  Once I refused leave to apply for judicial review, the applicant could have appealed that decision to the Court of Appeal in the manner and within the time limit prescribed.  What he cannot do, is he cannot come again to this court with the same application either with the same grounds or with new grounds that he could have raised in the 1^st application.

THE 2^ND APPLICATION – SAME GROUND EXPANDED AND AN ADDITIONAL GROUND

16.  In the affirmation of his 2^nd application there is an application for an extension of time because of the delay in making the 2^nd application which is inevitable.  There is confirmation that the applicant has previously applied for leave to apply for judicial review “but there was a lack of presentation in my previous application…  I shall be grateful if you could consider my present application as a fresh application”, paragraph 8. I assume that may be a typing error and maybe it should read “lack of representation” as in legal representation.  However, whether or not an error, I did not consider that application for an extension of time.

17.  There is an error or mistake in paragraph 4 of his affirmation where he says “therefore, I verily believe with prior interpretation of basis of claim prior to the appeal hearing; I would have elected to give evidence.  Although an interpreter was arranged at the hearing, he simply interpreted the questions asked by the adjudicator during the hearing only” (my emphasis added).  From the decision of the adjudicator it is clear that the applicant did elect to give evidence during the appeal hearing.

18.  The first ground is a repeat of the first ground of the 1^st application but expanded somewhat.  None of the additional particulars are new evidence the applicant did not know at the time he made the 1^st application.  It appears there is a separate and second ground that the applicant complains he was not legally represented for his appeal/petition to the TCAB and he did not know he could complain against the adjudicator’s handling of the appeal hearing.  The adjudicator did not inform him that he could complain.  He submits that he would be too scared to complain even if he could because it would hurt his chances of success.  From the outset, I can say this cannot be a ground with any merit against the adjudicator but I treated it as a ground put forward by the applicant in his 2^nd application.

THE DOCTRINE OF RES JUDICATA

Cause of action estoppel

19.  Res judicata is a generic term of which cause of action estoppel and issue estoppel are two species (R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146 at para 26). A cause of action estoppel is an absolute bar to proceedings; where this kind of estoppel applies, its effect is to bar re‑litigation of the entire course of action including reformulation of that cause of action.  This would only be subject to fraud which would usually enable the earlier decision to be set aside.

20.  There are justifications for the doctrine of res judicata; no person ought to be vexed twice by the same cause and there is a public interest in the finality of litigation or proceedings.  Parties have submitted their dispute to a decision-maker, be it a court or an arbitral tribunal and participated in the adjudicative process, each side has presented arguments and a decision has been reached on the cause of action or issue.  There would be no end to dispute resolution if parties were not bound by the decision on those matters.  The principle of cause of action estoppel and issue estoppel therefore prevent the re‑adjudication in subsequent proceedings of identical courses of action or issues between the same parties which have been finally adjudicated upon already.

21.  There are a number of constituent elements in proceedings based on cause of action estoppel:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.” (Spencer Bower & Handley, para 1.02)

22.  For there to be cause of action estoppel, the cause of action in the later proceedings must be identical to the earlier proceedings, the two sets of proceedings must be between the same parties or their privies, the subject-matter in dispute must be the same, and the judgment in the earlier proceedings be final and conclusive.

23.  Further explanation on the meaning and effect of cause of action estoppel can be found in these passages in Halsbury’s Laws of England, 5^th ed, vol 12:

“1174. Meaning of ‘cause of action estoppel’. Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. To decide which questions of law and fact were determined in the earlier judgment the court is entitled to look at the judge’s reasons for his decision and his notes of the evidence, and is not restricted to the record; but as a general rule, the judge’s reasons cannot be looked at for the purpose of excluding from the scope of his formal order any matter which, according to the issues raised on the pleadings and the terms of the order itself, is included in it.”

“1175. Doctrine applicable wherever same cause of action determined on the merits. In all cases where the cause of action is really the same and has been determined on the merits, and not on some ground (such as the non-expiration of the term of credit) which has ceased to operate when the second action or claim is brought, the plea of res judicata should succeed. The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court.”

“1176. Effect of previous judgment. Although it is true that estoppel by record must be reciprocal (that is, both parties must be precluded from re-opening matters determined in a prior case), a judgment in favour of a defendant is not always as decisive in his favour on the points in issue as judgment for a claimant would be, despite the fact that it is equally conclusive of the claim brought. Where a claimant recovers judgment, it almost necessarily follows that all the issues raised by the defendant have been determined in the claimant’s favour; there must at least have been a decision on the merits. A judgment may, however, have been passed in favour of the defendant on dilatory grounds, or on one only of many alternative defences, and circumstances may have arisen entitling the claimant to judgment which were not in existence when the first claim was brought. The burden is on the defendant to show that the judgment relied on was obtained upon grounds or in circumstances which afford him a defence to the subsequent claim.”

24.  Lord Sumption in Virgin Atlantic v Zodiac [2014] 1 AC 160 describes cause of action estoppel as two parts at paragraph 22:

“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.”

25.  Lord Sumption’s description applies to the applicant’s 2^nd application in these proceedings, in particular the second part.  Not only is the second cause of action identical to the first cause of action, the two sets of proceedings are between the same parties, the subject matter in dispute is the same and my previous decision was final.  The applicant here has raised a point or ground and expanded on a ground now which were not raised in the earlier proceedings but could have with reasonable diligence and should, if the applicant felt they had merit, been raised in the earlier proceedings.  This fits squarely within Lord Sumption’s description of a cause of action estoppel.  The applicant’s 2^nd application should be barred and dismissed on that basis.

Henderson v Henderson – the wider principle of Res Judicata

26.  Alternatively, if not a cause of action estoppel, then it is still an abuse of the process of the court to raise a claim in later proceedings that could and should have been raised in earlier proceedings; the Henderson v Henderson abuse or res judicata in the wider sense.  The rule is that the court requires the parties put forward their whole case and will not permit them later to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, omission or error.  However, there may be special circumstances to this rule, which the court may take into consideration.  I do not intend to fully review that principle, suffice to say it is a principle founded on an abuse of process.  See Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at para 84(1-5), Ma CJ.

27.  The courts have now adopted the approach of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1(at 31C-E) and in deciding whether there is an abuse of process, it is wrong to adopt a dogmatic approach and hold that because a matter could have been raised in earlier proceedings it should have been, so that raising it in later proceedings is necessarily abusive.  The question whether proceedings are an abuse of process, does not offend against public interest in the finality of litigation and ensures a party is not vexed twice in the same matter should be judged broadly on the merits, taking into account the public and private interests involved and on all the facts of the case.  The crucial question is whether, in all the circumstances, a party misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.  The courts must bear in mind that there is a danger of a party being shut out from bringing forward a genuine subject of litigation.  The principle should only be applied when the facts are such as to amount to an abuse.

28.  The abuse will usually take the form of the other party being vexed or oppressed or unjustly harassed or unjustly hounded and the form of abuse plain to see.  With the procedure reforms introduced by the Civil Justice reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process. RHC Order 1A, rule 1(f) states as one of the underlying objectives of the courts procedural powers under the Rules to be “to ensure that the resources of the Court are distributed fairly”.

29.  The principle in Henderson v Henderson has been considered and further developed in various case authorities, including Johnson v Gore Wood & Co, Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111, Healthy Living Products International Ltd v Murray [2012] 1 HKLRD 49 and Ko Hon Yue v Chiu Pik Yuk.  The courts have now adopted the following dicta of Lord Bingham in Johnson v Gore Wood & Co.

30.  There is no evidence from the applicant why he did not include those grounds from his 2^nd application in his 1^st application. I do not find anything in his 2^nd application that was not within his knowledge or not known to him at the time he made his 1^st application. There is no evidence from the applicant what he means by a lack of presentation in his 1^st application.  There is no evidence from the applicant why he filed a 2^nd application to be considered as a fresh application; there is no indication what was wrong with the 1^st application. He could have written to the court asking the court to consider additional grounds he had omitted or file a further affirmation without the need to pay a not insignificant sum to file a 2^nd application.

31.  I have considered all the circumstances of the case, the public and private interests of the parties involved and am certain the applicant is not in danger of being shut out from bringing forward a genuine application to apply for leave for judicial review when I find his 2^nd application an abuse of process because he raises grounds that, irrespective of whether they had merit, were known to him at the time of his 1^st application and should have been raised in his 1^st application.  I will not permit him to reopen the same cause of action.  The applicant is clearly “re-litigating” and the aim of the doctrine is to prevent the mischief of bringing a second application when the first should have brought finality to the matter.

THE APPLICANT’S INTENTION BEHIND THE 2^ND APPLICATION

32.  Bearing in mind that after an appeal of an unsuccessful application for leave to apply for judicial review this applicant has no further recourse as far as his non-refoulement protection claim is concerned.  To put it bluntly, it will mean that the Immigration Department will send him home to India because he has exhausted all avenues as far as his claim is concerned.  This is why applications for leave to apply for judicial review are made when there are unmeritorious grounds for such application in almost all cases.  The reality is applicants will not give up on any avenue as long as there is one open to them.  Whilst there is an application ongoing or an appeal yet to be determined then it is not yet time for arrangements to be made to send one home.  Although this is cynical to say, time is of the essence and to delay proceedings or to maintain a proceedingis absolutely to an applicant’s advantage.

33.  Therefore, I am sure the intended and hoped for consequence of this applicant filing a 2^nd application even though it can only mirror or duplicate his 1^st application, is to prolong judicial proceedings in his name. Why else would one pay a not insignificant sum of money to file a 2^nd application that is essentially identical to his 1^st application?  This applicant is not the only one, there have recently been over a dozen applicants seeking leave to apply for judicial review of the same TCAB decision to dismiss non-refoulement protection claims twice.  To prolong judicial proceedings is to delay what will probably be the inevitable and that is to be sent home.  To deliberately prolong the inevitable must be an abuse of the process and this abuse is exacerbated when one takes into account the resources of the court are being wasted in these duplicate applications.

RESTRICTED PROCEEDINGS ORDER

34.  There is nothing stopping this applicant from filing a 3^rd and then a 4^th application of exactly the same nature after the 2^nd application is dismissed.  The applicant is an asylum seeker who is desperate to remain in Hong Kong.  Although he will not succeed, to dismiss a subsequent application requires time and time delays the inevitable.  The Immigration Department is not always aware of the details and I doubt it is aware that these subsequent applications are an abuse of process; it is only aware that a judicial application is in process and therefore all avenues are not yet exhausted so it is not yet time to send the applicant home if the last application unsuccessful.

35.  Therefore, I am of the view that this applicant should be subjected to a RPO as will other similar litigants in accordance with Ng Yat Chi v Max Share Ltd & Anor FACV No. 5 of 2004.  I find this applicant has abused, and is likely to continue abusing, the court’s process by seeking persistently to re‑litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where a RPO would be a proportionate response.  This way, there is no possibility of any further abuse.  Hence my decision to make a RPO against the applicant on the same day I dismissed his 2^nd application.

36.  The applicant is prohibited from commencing any fresh proceedings in the Court of First Instance concerning any matters involving or relating to or touching upon or leading to the proceedings in the 1^st and 2^nd application without the leave of that court.  He must first write to this court or another designated judge for that leave.  This will prevent the abuse of process prevailing.

CONCLUSION

37.  This 2^nd application was dismissed because the doctrine of estoppel by res judicata applies; the cause of action estoppel principle in this case.  However, if I am wrong and the cause of action in the 2^nd application was not identical to the cause of action in the 1^st application, then the res judicata principle of Henderson v Henderson applies.  The applicant should not have started the 2^nd application because the enhanced first ground and the new ground should have and could have been dealt with in the 1^st application.

38.  I imposed a RPO on the applicant on the same day the 2^nd application was dismissed, in the main, because of his unique situation in Hong Kong.  I am of the view he is likely to continue abusing the process of the Court in the same manner to hope to prolong his stay in the territory which makes such an order necessary.