CAO THI HAU v. IMMIGRATION DEPARTMENT AND ANOTHER

CACV 403/2020

[2021] HKCA 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2020

(ON APPEAL FROM HCAL 942/2020)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 10 August 2020 in HCAL 942/2020. By that decision, the Judge struck out and dismissed the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 October 2018 on the ground of abuse of process in view of her earlier unsuccessful application in HCAL 632/2018 respect of the same decision of the Board.

Background

2.  The applicant is a Vietnamese national.  She entered Hong Kong illegally on 11 August 2015 and was arrested by police on 13 August 2015.  She lodged non-refoulement claim based on the fear that, if she returned to Vietnam, she would be harmed or even killed by her creditor for her failure to repay her loan. 

3.  Her claim was rejected by the Director of Immigration by notices of decision dated 2 September 2016 and 28 July 2017 respectively.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].  She appealed to the Board and the Board dismissed her appeal on 29 October 2018.

First application for leave for judicial review: HCAL 623/2018

4.  On 6 August 2019 the applicant first sought leave from the court to apply for judicial review against the Board’s decision and the Director’s decisions.  Following a hearing at which the applicant attended in person, Deputy High Court Judge Bruno Chan refused leave on 10 September 2019 ([2019] HKCFI 1016) on the ground that her application had no prospect of success. 

5.  The applicant appealed against the refusal of leave in CACV 443/2019.  The appeal was dismissed on 3 January 2020 due to her failure to comply with an unless order made on 13 December 2019.

6.  She subsequently sought leave to appeal to the Court of Final Appeal by a notice of motion of 16 January 2020.  That notice of motion was dismissed by the Court of Appeal on 11 June 2020 ([2020] HKCA 461). The Court considered that relief should not be granted for her failure to comply with the unless order due to her lack of explanation for her default and the lack of prospect of success on the merits and she had no viable ground of appeal.

Second application for leave for judicial review: HCAL 942/2020

7.  In the meantime, on 20 May 2020, the applicant sought leave for a second time from the court in HCAL 942/2020 to apply for judicial review against the same Board decision and the same Director’s decisions. She did not disclose in her Form 86 or her affirmation that she had made the first application and failed to obtain leave.  She also did not disclose she was appealing.

8.  The Judge processed HCAL 942/2020 on the papers.  The Judge struck out and dismissed the second application for leave to apply for judicial review as he held that that it was an abuse of process for the applicant to re-litigate her case by bringing a second judicial review of the same Board decision and the same Director’s decisions.

Appeal to this Court

9.  On 21 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her grounds of appeal were that the gravity of her circumstances had not been weighed or realized by the Board and the Director in considering her non-refoulement claim and she should be given the opportunity to plead her case properly.

10.  On the same day, the Applicant agreed in writing that the appeal could be processed on the papers.

11.  The applicant lodged her written submissions on 6 January 2021.  Those submissions referred to her predicament in Vietnam and the threats she faced there.

12.  Those submissions also did not address the issue of re-litigation and failed to identify any errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.

Discussion

13.  It is an abuse of process for the applicant to re-litigate her case by bringing a second judicial review in respect of the same Board decision or Director’s decisions, see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at §16; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at §13; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at §4.1; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at §22.

14.  In the present case, the applicant filed two applications for leave for judicial review of the same decisions.  The second application was filed when her appeal in the first application had been dismissed in the Court of Appeal.  She was then seeking leave to appeal to the Court of Final Appeal.  She should be aware that her notice of motion was pending when she filed her second application for judicial review.

15.  The existence of the first application and her unsuccessful appeal were not disclosed in her papers filed in the second application.

16.  The only basis on which her second application was dismissed by the Judge was that it was an abuse of process in light of the outcome in the first application.  The applicant has failed to identify, in either her grounds of appeal or her submissions, any basis for arguing that she should not be bound by the outcome in the first application.

17.  It is clear that the Judge was correct in holding that this second application is an abuse of process and the present appeal is without merit.

18.  For these reasons, we strike out and dismiss the appeal accordingly.