RE HASSAN MD

CACV 355/2019

[2019] HKCA 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 355 OF 2019

(ON APPEAL FROM HCAL 69 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr HASSAN MD, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 26 July 2019 refusing him leave to commence judicial review proceedings. The intended judicial review proceedings sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 15 June 2017 (“Board’s Decision”). The Board’s Decision in turn dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his claim for non-refoulement protection (“Claim”). Such rejection by the Director was embodied in, and communicated to the applicant by, 2 notices of decision dated 21 July 2016 and 18 May 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

The Claim, the Director’s Decisions, Appeal to the Board & the Board’s Decision

2.  The applicant is a national of Bangladesh now aged about 39.  He entered Hong Kong illegally, and was arrested by the Hong Kong police, on 23 June 2014. He lodged the Claim on 27 June 2014, which he later supported by a non-refoulement claim form dated 18 April 2016 (“Claim Form”).

3.  The basis of the Claim was a fear of being harmed or even killed by members of the Awami League (“AL”) because of the applicant’s political affiliation as a supporter of the AL’s political rival, the Bangladesh Nationalist Party. Given our conclusion that this appeal should be dismissed primarily on the ground that the proceedings below was per se an abuse of process, it is unnecessary, and we do not propose, to go into the circumstances under which such alleged fear of the applicant was said to arise. Such circumstances have in any event been set out in different degrees of detail in the 1^st Director’s Decision (see [6] at pages 2 to 11), the Board’s Decision (see [20] at the 3^rd to 5^th pages) and [2]-[4] of the Form CALL-1 dated 26 July 2019[1] (“2^nd JR Judgment”), all of which[2] we have considered with care.

4.  Nor is it essential for us to set out the reasons why the Director rejected the Claim / the Board dismissed the applicant’s appeal from the Director’s Decisions save to summarise the following:

(1)  The 1^st Director’s Decision found the Claim to be unsubstantiated in respect of torture risk[3], persecution risk[4] or “BOR 3” risk[5].

(2)  The 2^nd Director’s Decision rejected the Claim for failing to establish a “BOR 2” risk[6].

(3)  Upon the applicant’s appeal lodged on 1 August 2016, the Board conducted a rehearing of the Claim on 2 June 2017[7], at which the applicant testified before, and answered questions by, the Board through a Bengali interpreter.

(4)  The Board dismissed the applicant’s appeal under all 4 applicable grounds for non-refoulement protection[8].

(5)  The Claim essentially failed on the facts and evidence at both tiers under the Unified Screening Mechanism, with both the Director and the Board concluding that there would be no or no real risk of harm to the applicant from supporters of the AL if he should return to Bangladesh.

(6)  In particular, the Board found the applicant an incredible witness and rejected the Claim in its entirety due to inconsistencies between his oral evidence before the Board on the one hand and the independent news reports available to the Board and the assertions made by the applicant in the Claim Form and/or at the screening interview with the Director’s representative(s) on 19 May 2016.

Repeated applications for leave for judicial review

5.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 334/2017 on 28 June 2017 (“1^st JR Application”), the applicant first sought leave to apply for judicial review of the Board’s Decision. 

6.  The 1^st JR Application was heard in open court by A Wong J on 19 December 2017, at which hearing the applicant attended and applied for an adjournment to enable him to adduce certain photographs and video recordings taken at scenes where wrongdoings were committed by the AL people in support of his leave application. His Lordship refused to adjourn or grant leave to apply for judicial review. The applicant’s proposed grounds for judicial review and the reasons for their rejection can be found in [8]-[9] and [23]-[33] of A Wong J’s judgment dated 29 December 2017 (“1^st JR Judgment”) (excluding footnotes):

“8. The Applicant appeared in person. The ground of review he put forward was breach of procedural fairness, with the following particulars:

  (1) The Adjudicator unlawfully fettered his discretion by refusing the appeal on ground that they did not satisfy the requirement;

  (2) He acted in a procedurally unfair manner in dealing with the appeal;

  (3) His decisions to refuse the appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

  (4) He failed to meet the greater care and duty owed to a self-represented claimant.

9. He also complained that as most of the documents were in English there was insufficient time for him to prepare for the hearing due to his limited skill in English and being unrepresented. He was confused of what was happening. He also alleged that the Adjudicator had relied on hearsay and incredible information as well as outdated cases.

23.  As regards the additional evidence which the applicant sought to adduce, I do not find the applicant able to justify why this evidence which is available all along was not produced before the adjudicator and is now still yet to be obtained. In addition, the applicant is not in a firm position to tell when and how he is able to obtain the evidence he alleged to be in existence. I do not see the basis why the court has to accept the evidence at this stage.

24.  Besides, and more importantly, in my judgment the additional evidence is not going to materially enhance the case of the Applicant.  The primary basis of the decision of the Adjudicator is his rejection of the Applicant’s claim of his past political activities and support for BNP, and his assessment that there did not exist a real risk to the Applicant of harm from supporters of AL if he was to be refouled to Bangladesh. In forming his view, the Adjudicator set out in detail what he described as “multi-inconsistencies” in the evidence of the Applicant. The inconsistencies mentioned by the Adjudicator do not confine to the wrong doings which the Applicant mentioned at the hearing and what the additional evidence which the Applicant sought to adduce relates to.

25.  For these reasons, I refuse the application for time to obtain the evidence and have the hearing adjourned.

26.  I therefore proceed to consider the application for leave.

27.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

28.  The Applicant has to substantiate his non-refoulement claim under the applicable grounds. The task of the Adjudicator was to examine whether on the evidence before him any of the applicable grounds had been made out. The Adjudicator had considered and decided that none of the grounds had been made out. He has fulfilled his duty. I do not consider it reasonably arguable that the Adjudicator had unlawfully fettered his discretion in refusing the appeal. 

29.  As regards the allegation of procedural unfairness, there was only general observations from the Applicant and he has not pinpointed at any particular aspect or conduct on the part of the Adjudicator. The Adjudicator had conducted an oral hearing in which he asked the Applicant questions and discussed with him all the applicable grounds and let him have the opportunity to make submissions. There was no allegation from the Applicant that there was / were findings of the Adjudicator which was based on misunderstanding of facts / circumstances of the Applicant. In his consideration, the Adjudicator was entitled to take into account all relevant information which is not confined to evidence of a nature admissible in a trial under the strict rules of evidence. Of course he was under a duty to assess truthfulness and reliability of the information. I do not find any material flaw in his consideration.  

30.  In relation to Ground 3, as I have said the allegations of procedural errors and unfairness are not reasonably arguable. The Applicant further submitted that the decision of the Adjudicator was unreasonable or irrational in the public law sense. Having perused the Decision of the Adjudicator carefully, I cannot find this allegation reasonably arguable.

31.  As regards Ground 4, bearing in mind the Applicant was acting in person and accepting that his proficiency in English is not good, I am not able to find any indication that the Adjudicator had failed to perform his duty in an appropriate manner. It can hardly be said that he failed to exercise the level of care expected of him in the circumstances. I do not consider it can be reasonably arguable that there were material wrongful consideration of the evidence and that the decision was unreasonable in the Wednesbury sense.

32.  Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration, in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1)  whether the adjudicator committed any error of law in his decision;

(2)  whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3)  whether the substantive decision satisfied the enhanced Wednesbury test.

33.  I have considered the Decisions of the Adjudicator. I am not persuaded that any allegation by the Applicant is substantiated in the sense that there is realistic prospect of success.”

7.  Instead of appealing to the Court of Appeal against the 1^st JR Judgment, by another Notice of Application for Leave to Apply for Judicial Review issued under HCAL 69/2018 on 15 January 2018 (“2^nd JR Application”), the applicant re-applied for leave for judicial review of the Board’s Decision.

8.  Again, given that this appeal is to be dismissed primarily for the abusive nature of the 2^nd JR Application, it is unnecessary, and we do not propose, to go into the applicant’s proposed grounds for judicial review the second time around.

9.  After a hearing in open court at which the applicant was present to make oral submission, the Judge struck out and dismissed the 2^nd JR Application for the reasons set out in [11]-[15] of the 2^nd JR Judgment:

“11.  On 29 December 2017 Wong J refused to grant leave to the applicant’s application upon finding none of his proposed grounds reasonably arguable or any realistic prospect of success for his intended application.

12.  The applicant did not appeal against that decision, and instead on 15 January 2018 he filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision with similar grounds as before.

13.  In his supporting affirmation of the same date, he acknowledged that he had previously made similar application in paragraph 8 as follows:

“ … I had previously applied for leave to apply judicial review but the leave was refused by the Honourable Mr Justice A. Wong due to lack of presentation in my previous application for leave to apply judicial review.  Therefore, I shall be grateful if you could consider my present application as a fresh application.”

14.  At the hearing of his leave application, the applicant conceded that his previous leave application had already been properly disposed of by the Court in HCAL 334/2017, but as he was not satisfied with the Court’s decision, and as his problems back home had still not been resolved, he therefore wanted to make another application for judicial review.

15.  In the premises and putting aside the fact that his application would have been seriously out of the period required by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, it is in my judgment clearly an abuse of process for the applicant to bring a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 334/2017, and for failing to inform the Registry of the same when he filed his Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.”

Appeal to Court of Appeal and grounds of appeal

10.  By a notice of appeal filed herein on 2 August 2019, the applicant appealed against the 2^nd JR Judgment on these grounds (“Grounds”):

(1)  that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2)  that “the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (“Ground 2”)

11.  On 11 October 2019, the applicant lodged skeleton submission, which referred to ST v Director of Immigration (sic)[9] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

12.  We pause to observe that neither the notice of appeal nor the skeleton submission before us engaged the Judge’s reason for dismissing the 2^nd JR Application by addressing or even acknowledging the fact that the applicant had made repeated applications for leave to apply for judicial review of the Board’s Decision.

13.  The applicant was absent from the hearing of the appeal on 25 November 2019. We will determine this appeal on the basis of the materials before us.

Discussion

14.  We agree with what the Judge said in [15] of the 2^nd JR Judgment. The 2^nd JR Application was rightly struck out for being an abuse of process. As this court has said on multiple occasions, it is an abuse of process for an applicant to bring a second judicial review application in respect of the same decision of the Board after he failed to get leave in the first application. See Re Mamun Moihammad 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]. The applicant’s lack of legal representation, raised by him before the Judge, did not in our view detract from or diminish the abusive nature of the 2^nd JR Application. The same procedural law has to apply across the board to all litigants, whether represented or not. The courts could not otherwise have functioned properly.

15.  Further, given the time taken for the determination of the failed 1^st JR Application, the 2^nd JR Applicant was unsurprisingly outside the 3-month statutory limitation. As was held by the Court of Appeal in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29], where an application for leave for judicial review is outside the 3-month statutory time limit, the applicant must obtain an extension of time under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) before the application for leave can be entertained. Given that the 2^nd JR Application was an abuse of process as a result of the determination of the 1^st JR Application on the merits, there cannot be any good reason to extend time.

16.  In any case, the Grounds, even if entertained, have no merits. 

17.  Dealing first with Ground 1, neither an application for leave for judicial review nor an appeal against a refusal of leave for judicial review is a channel for a fresh reconsideration of the facts, especially in the non-refoulement claim context. The Court of First Instance will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the Court of Appeal will examine the first instance judge’s refusal of leave for judicial review in light of the ground(s) of appeal advanced by the applicant, which must be premised upon the judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. As summarised in [4(5)]-[4(6)] above, the Claim failed on the facts and evidence at both stages of the screening process. In particular, the applicant was found not to be a credible witness by the Board which rejected the Claim in its entirety. The applicant’s bare assertion that he would face hardship if he be refouled back to Bangladesh goes against such finding by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director). The Board heard the applicant and had the opportunity to test his evidence. It provided detailed reasons for not accepting the applicant’s testimony of the circumstances giving rise to the alleged risk of harm to him from the AL. We can discern no error of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse finding against the applicant. Ground 1, even if permitted to be argued, is devoid of merit.

18.  Ground 2 targets the Board. In hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the fist instance judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. Even leaving aside the abuse of process by the applicant, he has not identified in any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or been otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any. Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has the applicant alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information. Ground 2, even if permitted to be argued, is likewise unmeritorious.

Disposition

19.  This appeal is bad on multiple bases and must be dismissed.