TAMANG BHIM BAHADUR v. TORTURE CLAIMS APPEAL BOARD

CACV 281/2020

[2021] HKCA 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 281 OF 2020

(ON APPEAL FROM HCAL NO 319 of 2018)

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J U D G M E N T

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Hon S T Poon J (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”) given on 7 July 2020 striking out and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 6 September 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 28 June 2016 and 31 May 2017 rejecting his non-refoulement claim.

2.  The applicant is a national of Nepal.  He entered into Hong Kong on 16 January 2014 but he overstayed.  He later raised a non-refoulement claim. 

3.  The applicant’s claim was based on his fear of being harmed or killed by supporters of rival political party, the Communist Party of Nepal.   

4.  By his decision dated 28 June 2016  (“the Director’s  first decision”), the Director rejected the applicant’s claim having regard to the BOR 3 risk[1] grounds, as well as other statutory and convention rights against torture and persecution.  By a further decision dated 31 May 2017, the Director rejected the applicant’s claim having regard to the BOR 2 risk[2].

5.  By its decision dated 6 September 2017 (“the Board’s decision”), the Board dismissed the appeal having regard to all applicable grounds. 

6.  On 21 September 2017, the applicant filed his Form 86 under HCAL 654/2017 for leave to apply for judicial review of the Director’s decisions and the Board’s decision.  On 4 May 2018, the Judge refused the applicant’s leave application in HCAL 654/2017.

7.  The applicant then lodged an appeal to the Court of Appeal against the Judge’s decision in HCAL 654/2017.  His appeal was dismissed by the Court of Appeal on 27 September 2018[3].  The applicant subsequently applied for leave to appeal to the Court of Final Appeal but leave was refused on 3 December 2018 by the Court of Appeal. 

Application for leave to start judicial review

8.  On 5 March 2020, the applicant filed a Form 86 in the present case to apply for leave again to judicially review the Board’s decision.

The Judge’s Decision

9.  The Judge held that the principles of res judicata applied and 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 Board’s decision.

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 22 July 2020, the applicant appealed against the Judge’s second refusal of leave for judicial review on the ground that there was a failure on the part of the Board to adhere to high standard of fairness, and that the Judge failed to make sufficient enquiry.  He then describes the background of his case, and provides very broad and vague allegations against the Judge without specifying how they relate to his case.

Skeleton Submissions

11.  In his skeleton submissions dated 22 March 2021, the applicant repeated that there was a failure to meet high standard of fairness.  He stated also that his fear of being tortured was more harmful than actual physical harm.  He stated that there was no fair oral hearing, he was unrepresented, and that there was a substantial chance of his being subject to torture if he is to be refouled. 

12.  The applicant did not address on the issue of res judicata or abuse of process.

13.  We heard the appeal on 20 April 2021. At the hearing, the applicant reiterated that he is not in a position to go back to his country as there is danger to his life.  He asked this court to give him at least 8 to 9 months to obtain documents to prove that his life is in danger.  He said that his family members asked him not to go back to Nepal because the Communist Party there is looking for him. 

Discussion

14.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the Judge.  In the present case, the Judge ruled that the principles of res judicata applied and 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 Board’s decision.  The applicant has not pointed to any error in the Judge’s reasons for decision. 

15.  This is the second time the applicant applied for leave to apply for judicial review on the same subject matter.  The applicant has already appealed against the Judge’s decision to refuse leave in HCAL 654/2017 and the Court of Appeal has dealt with the appeal.  By making another leave application it is a clear abuse of process.  There is no basis at all to disturb the Judge’s decision.  

16.  An appeal lodged against the decision made in the second application for leave to apply for judicial review is an abuse of process of the court and such an appeal is liable to be struck out[4].

17.  For the above reasons, we order that the Notice of Appeal be struck out.