MOHAMMED EKBAL v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 362/2019

[2019] HKCA 1313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 362 OF 2019

(ON APPEAL FROM HCAL NO 38 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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 26 July 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of India.  He first made a torture claim on 28 July 2007, which was later withdrawn on 16 October 2008.  About two years later, on 7 September 2010, he requested to re-open his torture claim.  He further applied for non-refoulement protection under the ground of cruel, inhuman or degrading treatment or punishment (“CIDTP Claim”) on 2 May 2013.  His torture claim was refused on 25 October 2013, and his CIDTP Claim was withdrawn on 17 March 2015. He was deported back to India on 2 April 2015.

3.  About 4 months after the said deportation, on 21 August 2015, the applicant was arrested by the police for illegal remaining.  According to him, he entered Hong Kong illegally on the same day.  He made a claim for non-refoulement protection by way of written representations dated 24 August 2015 and 9 September 2015. By the decision dated 14 September 2015, the Director of Immigration (“the Director”) allowed the applicant to make a subsequent claim. 

4.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the members of the Communist Party of India (Marxist) because of the conflicts between the two relating to the posting of banners in the 2006 parliamentary election.  The facts of this case were set out in [5] – [7] of a Form CALL-1 under HCAL 450/2017 ([2018] HKCFI 831), as well as in [1.4] – [1.5] of a judgment given by the Court of Appeal under CACV 141/2018 ([2018] HKCA 726).

5.  By two notices of decision dated 15 April 2016 and 9 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The former decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]; and the latter the BOR 2 risk^[4].

6.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  By a decision given on 20 July 2017, the Board dismissed the applicant’s appeal/petition.

HCAL 450/2017

7.  On 25 July 2017, the applicant filed a Form 86 under HCAL 450/2017 seeking leave to apply for judicial review against the Board’s decision.  The application was dealt with by Deputy High Court Judge Woodcock, who refused to grant leave on 30 April 2018, see: [2018] HKCFI 831.

CACV 141/2018

8.  By a notice of appeal filed under CACV 141/2018, the applicant appealed against DHCJ Woodcock’s decision.  The Court of Appeal (Cheung, Yuen, and Chu JJA) dismissed the appeal on 18 October 2018, see: [2018] HKCA 726.

9.  The applicant further sought leave from the Court to appeal to the Court of Final Appeal.  The Court refused to grant leave on 18 January 2019, see: [2019] HKCA 86.

HCAL 38/2018

10.  About 3 months before DHCJ Woodcock gave her decision in HCAL 450/2017, on 8 January 2018, the applicant made a second application for leave to apply for judicial review against the Board’s decision.  The grounds of review as set out in the Form 86 and his supporting affirmation were summarized by the Judge in [5] of the Form CALL-1 ([2018] HKCFI 1874). 

11.  Upon the request of the applicant, an oral hearing was scheduled to be held on 29 May 2019.  However, the applicant failed to attend the hearing. 

12.  As we mentioned before, the Judge refused to grant leave for the applicant to apply for judicial review.  The Judge after recounting the procedural history at [6] – [8] of the Form CALL-1 (as set out in [7] – [9] above) gave the following reason in refusing leave at [9] – [10]:

“9. Surely the principle of res judicata applies, and it is clearly 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 after he failed to obtain leave from the Court in HCAL 450/2017 and despite the Court of Appeal’s subsequent decision upholding the refusal of his leave application, and also for failing to disclose to the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

10. In the premises and accordingly this second leave application for judicial review of the Board’s decision by the applicant is hereby struck out and dismissed.”

The present appeal

13.  On 6 August 2019, the applicant filed a notice of appeal against the Judge’s decision.  He stated in the notice that:

“... the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.” (sic)

14.  We note that this exact same grounds of appeal had been advanced before, and duly rejected, by the Court in CACV 141/2018, see: [2018] HKCA 126 at [2.1] and [3.1] – [3.10].

15.  The applicant lodged his written submissions on 26 September 2019.  In it, he referred to the cases of ST v Director of Immigration^[5][2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and R v Home Secretary, ex parte Doody [1994] 1 AC 531 for the proposition that high standards of fairness are required in determination of torture claims.   

16.  We heard the appeal on 25 November 2019.

Discussion

17.  In our judgment, the present appeal should be struck out and dismissed for three reasons.

18.  First, as the Court pointed out in 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], it is prima facie an abuse of process for an applicant to bring a second judicial review in respect of the same decision of the Board after the court refused leave for him to do so in the first judicial review.  In the present case, we are conscious of the fact that the proceeding below was instituted before the handing down of DHCJ Woodcock’s decision in HCAL 450/2017.  That being so, in absence of any cogent explanation why the applicant made the second application for leave to judicial review against the same decision of the Board, there is no basis for us to accept that the proceeding was brought reasonably and is not an abuse of process. 

19.  Secondly, in light of the judgment given by the Court of Appeal in CACV 141/2018, the applicant should have known that his grounds of appeal advanced there were totally devoid of merits.  Yet he chose to rely on the exact same grounds in this appeal.  The legal authorities cited by the applicant in his skeleton submission will not bring him any further in this appeal.  In our view, it is clearly an abuse of process to prosecute this appeal in such a manner.  The appeal should therefore be struck out and dismissed.

20.  Thirdly, the applicant brought the second application for leave to judicial review outside the statutory 3-month time limit.  At the time of the hearing of the second application, the applicant’s first application (HCAL 450/2017) and the appeal therefrom (CACV 141/2018) had already been determined on merits.  In such circumstances, there were no good reasons to justify an extension of time to bring the second application for judicial review out of time. 

21.  It was held by this Court (differently constituted) in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29] that, for an application made outside the three-month time limit, an applicant must obtain an extension of time under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) before an application for leave to judicial review can be entertained.  It was further held at [41] – [45] of that judgement that leave to appeal under s 14AA of the High Court Ordinance (Cap 4) is required before an appeal can be brought against that decision. No requisite leave to appeal has been obtained.  Nor is there any reason why leave to appeal should be granted in the present case.  In absence of the requisite leave, the appeal is incompetent and should be struck out and dismissed. 

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