FAROOQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 230 /2020

[2021] HKCA 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2020

(ON APPEAL FROM HCAL NO 235 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 23 June 2020^[1]. By that decision, the judge struck out and dismissed the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. This appeal is dealt with on paper due to the applicant’s failure to comply with the order of the Registrar of Civil Appeal to lodge a skeleton argument within time as mentioned below.

2.  The applicant is a national of Pakistan.  He is 55 years old.  He came to Hong Kong illegally on 21 October 2013 and was arrested by the police on the same day.  He lodged a non-refoulement claim on 26 October 2013.  His claim was made on the basis that he would be harmed or killed by the supporters of a rival political party Pakistan Muslim League (N) (“PMLN”).

The Director’s decision

3.  By a Notice of Decision dated 28 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director found that the applicant did not suffer any severe pain and suffering in the past.  Taking into account the absence or low intensity and frequency of the alleged past ill-treatment, the Director assessed that the future risk of harm upon the applicant's return to Pakistan is small.  The Director found that there is insufficient evidence to show that people from the PMLN had acted under the state's consent or instruction.  The Director also considered that the availability of state protection and internal relocation option further lowers or negates the perceived risk of harm.  

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 11 May 2017.  The Board held that the applicant does not face a real risk of any form of serious harm in his local area and his fear of persecution is not objectively well-founded.  Thus, the Board rejected the appeal on 8 June 2017. 

The first leave application - HCAL 356/2017

6.  The applicant filed a Form 86 and an affirmation under HCAL 356/2017 on 4 July 2017 to seek leave to apply for judicial review against the decision of the Board.

7.  He put forward these grounds for his intended challenge:

(1)     there is no reasonable basis for rejecting his claim on credibility;

(2)     the Board failed to fully consider the extended form of state acquiescence;

(3)     the Board failed to fully consider the Country of Origin Information reports in assessing risk to him if refouled;

(4)     there is no proper basis for the consideration of internal relocation.

The decision in HCAL 356/2017

8.  The applicant was absent at the hearing before DHCJ Woodcock scheduled on 18 October 2017. The judge considered that the applicant has failed to show any failing on the part of the adjudicator.  It was held that there is no error of law in the Board’s decision and there is no evidence of procedural unfairness or failure to adhere to a high standard of fairness.  As the applicant does not have a realistic prospect of success in his intended judicial review, the judge dismissed the leave application on 22 December 2017.

The second leave application - HCAL 235/2018

9.  The applicant did not appeal against the decision of DHCJ Woodcock.  Instead, he filed another Form 86 and supporting affirmation under fresh proceedings in HCAL 235/2018 on 13 February 2018 to apply for leave for judicial review against the Board's decision.

10.  Nine grounds for his intended challenge were put forward in HCAL 235/2018 but on close examination they are essentially the same as or similar to the grounds advanced in HCAL 356/2017 and held by DHCJ Woodcock as not reasonably arguable^[6].

11.  His second leave application was struck out and dismissed by DHCJ Bruno Chan on 23 June 2020.  The judge held the principle of res judicata clearly applies.  Further, it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board and failing to disclose the earlier application to the Registry when he filed his second Form 86, resulting in much judicial and public resources being wasted in processing the second application^[7].

12.  On 30 June 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan of 23 June 2020.

The grounds of appeal

13.  The applicant stated the following grounds of appeal in the notice of appeal:

(1)     He will face hardship if he is to return to his home country.

(2)     The Board has significantly relied on source of news which is not officially recognized or is simply hearsay.  It has also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in groundless speculations.

Non-compliance with order for lodging of skeleton argument

14.  Directions were given by the Registrar of Civil Appeals on 14 September 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

15.  A notice of hearing dated 12 November 2020 informing the applicant that the appeal was scheduled to be heard on 5 January 2021 was sent to his address by registered post.  The notice was unclaimed and was returned to the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15).

16.  The applicant failed to lodge a skeleton argument on or before the deadline of 8 December 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By a letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. This letter and the earlier letter conveying the Registrar of Civil Appeals’ directions of 14 September 2020 were sent to the applicant by ordinary post . They have not been returned by the Post Office.

Legal Principles

17.  It is a serious abuse of process for an applicant to file a second application for leave for judicial review of the same decision of the Board without disclosing in the Form 86 or affirmation in support, or informing the High Court Registry, that there was a previous unsuccessful application for leave for judicial review in respect of the same decision: Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380.  It was held in Khan Kamran that it would be appropriate to strike out an appeal in such cases as an abuse of process (at §§21 to 26).

Analysis and disposition

18.  In the present case, the applicant did not disclose in his supporting affirmation for the second leave application or inform the High Court Registry of his unsuccessful first leave application.  This is a serious breach of duty on his part as the applicant of an ex parte application to make full and frank disclosure.  It would be appropriate to strike out the notice of appeal on the ground of abuse of process.

19.  In any event, even if the appeal is not struck out, it must be dismissed on the basis that the appeal is wholly without merit as the applicant has entirely failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision. 

20.  We therefore strike out and dismiss this appeal.