MD ALAMGIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1166/2017

[2018] HKCFI 759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1166 OF 2017

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REASONS FOR JUDGMENT

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1.  The applicant is a Bangladeshi national who claimed to have entered Hong Kong illegally on 19 June 2013, only to be arrested on 23 June 2013. He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 29 February 2016 and 9 February 2017. The adjudicator of the Torture Claims Appeal Board (“TCAB”) rejected his appeal/petition on 16 June 2017.

2.  The applicant filed his first application for leave to apply for judicial review of those decisions, the decision of the Director and the TCAB on 29 June 2017 (“1^st application”).  He requested a hearing date and was heard on 29 September 2017 when he appeared in person.  This court refused leave to apply for judicial review on 4 December 2017, see HCAL 344/2017.  The applicant did not appeal that decision to the Court of Appeal.

3.  This is the applicant’s second application for leave to apply for judicial review of the same TCAB decision, this application was filed on  29 December 2017 (“2^nd application”) which was 24 days after this court refused leave in his 1^st application.  He again asked for an oral hearing and I set down a hearing date of 26 March 2018 but this time, the applicant was absent.

4.  On 26 March 2018, I dismissed the 2^nd application and issued a Restricted Proceedings Order (“RPO”) against him with reasons to be handed down at a later date.  I now hand down those reasons.

5.  This applicant was to be heard at the same time on 26 March as three other applicants who had also filed duplicate second applications. Although all acting in person, their applications were identical in form and in wording as were their affirmations.  Their reasons for delay in filing their applications and their grounds were almost word for word identical bar one.  That applicant in HCAL 1105/2017 had no choice but to put forward a different ground because, unlike the other three, the adjudicator of his TCAB decision determined his appeal without an oral hearing.  This could not be a coincidence so I set all four second applications down to be heard on the same day and wrote to all four applicants informing them that it had come to the court’s attention they had made a duplicate second application and the court would hear them first on the preliminary issue of doctrine ofres judicata/abuse of process.  I gave them leave to file a further affirmation on this issue.

6.  On 26 March, all four applicants were absent at 10 am. Attempts to contact all four including this applicant on their mobile telephone numbers that they had left on the court files as their contacts unanimously failed.  At 10:25am I dismissed all four, including this applicant’s application.  I issued a RPO against all four.  

THE ISSUES

7.  Several issues arise as a result of the 2^nd application.  Firstly, the 2^nd application is filed late, just over three months late; such an application should be filed within three months of the date of the decision of the adjudicator according to Order 53, rule4.  Secondly, the doctrine of res judicata arises.  Is the 2^nd application barred by cause of action estoppel?  The cause of action he is seeking, leave to apply for judicial review has been refused once already.  He admits he knows it was refused once already, yet filed a second identical application albeit with different grounds.  To seek it again, the exact same action with a new action is prohibited.  Alternatively, is it barred by the Abuse of Process principles pursuant to Henderson v Henderson (1843) 3 Hare 100 which sets out a public policy rule that prevents parties from advancing matters or raising claims and defences that should have been pursued in earlier proceedings but were not so pursued.  Thirdly, in view of the identity of the applicant, an asylum seeker, the intentions behind the 2^nd application deserves serious consideration.

BACKGROUND OF THE APPLICANT’S CLAIM

8.  The basis of the applicant’s claim was that if he wasto return to Bangladesh he would be harmed or killed by Dada and his followers from the Awami League party (“AL”). The applicant was born in 1980 and completed year 10 at school.  He worked as a salesman between 1998 and 2011 before briefly opening his own shop for a few months in 2011 selling mobile phone accessories.  The adjudicator of the TCAB set out the applicant’s claim and evidence in full in his decision therefore there is no need for me to repeat it here; I will summarise it only.

9.  The applicant had joined the student wing of the Bangladesh Nationalist Party (“BNP”) as an ordinary member in 1998.  Three years later he was appointed as a publicity secretary.  In 2009, the applicant joined the youth wing of the BNP and appointed a secretary.  In early 2011, he borrowed 2 million takas from a corporate finance company to start his own retail business in a market, renting a shop space.  He had returned the principal sum within 18 to 24 months and the interest was 200,000 takas. He could earn 8,000 to 10,000 takas each day and had repaid 87,000 takas to the finance company by mid‑2011.  By then his business had been running for four to five months.  But in mid‑2011 a gang led by Dada, a notorious man closely associated with two AL members of Parliament came to his shop to extort money from him, demanding 400,000 takas.  The applicant refused but they told him they would come back in 10 days to collect the money.  Dada was not ever with them but the applicant recognised these men as being closely associated with Dada.

10.  The applicant tried to report this extortion to the police but when he mentioned the name of Dada the police officers refused to register his case.  The applicant sought help from the chairman of the market committee and the president of his BNP ward who both contacted the police on his behalf but to no avail.  The police still refused to investigate the extortion attempt.  The chairman of the market committee suggested the applicant pay the amount to avoid trouble.

11.  Dada’s gang of men did return and smashed up his shop, stole cash, stole stock worth 400,000 takas and chopped the applicant’s two shop assistants all over their bodies.  The applicant was hit with metal rods and a hockey stick, he suffered only bruises.  The three men were taken to hospital where the two shop assistants were hospitalised for several days.

12.  The applicant did resume his business in the market but six weeks later the same gang of men came again and told him that Dada insisted he close his shop as no leader of the BNP were allowed to work in this market any longer.  The market committee could not help him.  Two weeks later, the same men returned and demanded the applicant pay them 100,000 takas and hand over the keys.  When he resisted, he and his shop assistants were assaulted.  A gun was fired outside his shop but the three men were able to run away.  The applicant then fled to his sister’s home in Dhaka by bus over two hours away.  The market committee informed him over the phone that his shop had been ransacked and Dada had warned the committee the applicant could not do business in that shop any longer.  The applicant hid for six months in his sister’s home.

13.  The finance company filed a case against him with the police because he was unable to repay his loan.  His family said people from the AL were asking after him in their village.  The applicant decided he had to leave Bangladesh to save his own life and his family paid 300,000 takas to an agent for him to travel to South Korea.  He left Bangladesh on 28 February 2012 and arrived in China but remained in Shenzhen for one year and four months waiting to go to South Korea.  On 19 June 2013 he was put on a boat at night without knowing where he was going and then dumped on land. Later, he realised he was in Hong Kong and arrested a few days later.  The applicant believes Dada would use the vast network available to AL and find him anywhere in Bangladesh so relocating internally is not an option.

THE TCAB DECISION

14.  The adjudicator treated the appeal/petition as a rehearing.  An oral hearing was conducted and the applicant adopted all the evidence, elected to answer questions and had no submissions to make.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  The adjudicator analysed the applicant’s evidence and found there to be material inconsistencies which led him to question his credibility.  The adjudicator set out in his decision why he did not find the applicant reliable or believable; he was not convinced the applicant was a genuine claimant.  He found there was no real risk he would be harmed or ill‑treated if refouled to Bangladesh.

15.  The adjudicator confirmed the decision of the Director and made a finding the applicant was unable to successfully show he was at risk of torture if he returned to Bangladesh, nor at risk of ill-treatment under BOR 3 or at risk of a violation of his rights under BOR 2 or had a well‑founded fear of being persecuted for a Refugee Convention reason.

THE 1^ST APPLICATION – LEAVE TO APPLY FOR JUDICIAL REVIEW REFUSED

16.  I consider the applicant’s grounds set out in his affirmation and found all grounds to be without merit.  I found no error of law by the adjudicator, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable and there was no realistic prospect of success in the applicant’s application.  He did not appeal that decision to the Court of Appeal in the manner and within the time limit prescribed.  What he cannot do, is he cannot come again to this court with the same application either with the same grounds or with new grounds that he could have raised in the 1^st application.

THE 2^ND APPLICATION – NEW GROUNDS THAT WERE NOT IN THE 1^ST APPLICATION

17.  In the affirmation of this 2^nd application, the applicant relies on different grounds to those he relied on in his 1^st application.  There is an application for an extension of time because of the delay in making this 2^nd application which is inevitable.  There is confirmation that the applicant has previously applied for leave to apply for judicial review “but leave was refused due to lack of presentation in my previous application”, paragraph 11.  I assume that may be a typing error and it should read “lack of representation” as in legal representation.  However, whether or not it is an error, I did not go on to consider the application for an extension of time.

18.  I have considered the grounds in this 2^nd application.  The applicant submits the appeal bundle was in English, not served in a timely manner and he had no money to hire an interpreter therefore, he was confused when he appeared at the appeal hearing.  He complains that if he had had the bundle translated which he acknowledges was his own claim and own previous interviews then he would have “elected to go for the hearing”, see paragraph 7 of the affirmation.  He also says that he was confused whether to go or not to the hearing because he did not want to give any inconsistent evidence.  This is confusing when he clearly did attend the appeal hearing.  He mentions the presence of an interpreter but does not say whether he asked the interpreter for any assistance.

19.  It appears there is a separate and 2^nd ground that the applicant complains he was not legally represented for his appeal/petition to the TCAB and the adjudicator did not tell him he could complain against the adjudicator’s handling of the appeal hearing.  He submits he is not expected to know he could complain against the adjudicator and even if he did, he should not be expected to complain against the adjudicator because it would hurt his chances of success in his appeal.

THE DOCTRINE OF RES JUDICATA

Cause of action estoppel

20.  There are justifications for the doctrine of res judicata; no person ought to be vexed twice by the same cause and there is a public interest in the finality of litigation.  Parties have submitted their dispute to a decision-maker, be it a court or an arbitral tribunal and participated in the adjudicative process, each side has presented arguments and a decision has been reached on the cause of action or issue.  There would be no end to dispute resolution if parties were not bound by the decision on those matters.  The principle of cause of action estoppel and issue estoppel therefore prevent the re‑adjudication in subsequent proceedings of identical courses of action or issues between the same parties which have been finally adjudicated upon already.

21.  There are a number of constituent elements in proceedings based on cause of action estoppel:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.” (Spencer Bower & Handley, para 1.02)

22.  For there to be cause of action estoppel, the cause of action in the later proceedings must be identical to the earlier proceedings, the two sets of proceedings must be between the same parties or their privies, the subject-matter in dispute must be the same, and the judgment in the earlier proceedings be final and conclusive.

23.  Further explanation on the meaning and effect of cause of action estoppel can be found in these passages in Halsbury’s Laws of England, 5^th ed, vol 12:

“1174. Meaning of ‘cause of action estoppel’. Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. To decide which questions of law and fact were determined in the earlier judgment the court is entitled to look at the judge’s reasons for his decision and his notes of the evidence, and is not restricted to the record; but as a general rule, the judge’s reasons cannot be looked at for the purpose of excluding from the scope of his formal order any matter which, according to the issues raised on the pleadings and the terms of the order itself, is included in it.”

“1175. Doctrine applicable wherever same cause of action determined on the merits. In all cases where the cause of action is really the same and has been determined on the merits, and not on some ground (such as the non-expiration of the term of credit) which has ceased to operate when the second action or claim is brought, the plea of res judicata should succeed. The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court.”

“1176. Effect of previous judgment. Although it is true that estoppel by record must be reciprocal (that is, both parties must be precluded from re-opening matters determined in a prior case), a judgment in favour of a defendant is not always as decisive in his favour on the points in issue as judgment for a claimant would be, despite the fact that it is equally conclusive of the claim brought. Where a claimant recovers judgment, it almost necessarily follows that all the issues raised by the defendant have been determined in the claimant’s favour; there must at least have been a decision on the merits. A judgment may, however, have been passed in favour of the defendant on dilatory grounds, or on one only of many alternative defences, and circumstances may have arisen entitling the claimant to judgment which were not in existence when the first claim was brought. The burden is on the defendant to show that the judgment relied on was obtained upon grounds or in circumstances which afford him a defence to the subsequent claim.”

24.  Lord Sumption in Virgin Atlantic v Zodiac [2014] 1 AC 160 describes cause of action estoppel in two parts at paragraph 22:

“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.”

25.  Lord Sumption’s description applies to the applicant’s 2^nd application in these proceedings, in particular the second part.  Not only is the second cause of action identical to the first cause of action, the two sets of proceedings are between the same parties, the subject matter in dispute is the same and my previous decision was final.  The applicant here has raised points or grounds now which were not raised in the earlier proceedings but could have with reasonable diligence and should, if the applicant felt they had merit, been raised in the earlier proceedings.  This fits squarely within Lord Sumption’s description of a cause of action estoppel, part 2.  The applicant’s 2^nd application should be barred and dismissed on that basis.

Henderson v Henderson –the wider principle of Res Judicata

26.  Alternatively, if not a cause of action estoppel, then it is still an abuse of the process of the court to raise a claim in later proceedings that could and should have been raised in earlier proceedings; the Henderson v Henderson abuse or res judicata in the wider sense.  The rule is that the court requires the parties put forward their whole case and will not permit them later to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, omission or error.  However, there may be special circumstances to this rule, which the court may take into consideration.  I do not intend to fully review that principle, suffice to say it is a principle founded on an abuse of process.  See Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at para 84(1-5), Ma CJ.

27.  The courts have now adopted the approach of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1(at 31C-E) and in deciding whether there is an abuse of process, it is wrong to adopt a dogmatic approach and hold that because a matter could have been raised in earlier proceedings it should have been, so that raising it in later proceedings is necessarily abusive.  The question whether proceedings are an abuse of process, does not offend against public interest in the finality of litigation and ensures a party is not vexed twice in the same matter should be judged broadly on the merits, taking into account the public and private interests involved and on all the facts of the case.  The crucial question is whether, in all the circumstances, a party misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.  The courts must bear in mind that there is a danger of a party being shut out from bringing forward a genuine subject of litigation.  The principle should only be applied when the facts are such as to amount to an abuse.

28.  The abuse will usually take the form of the other party being vexed or oppressed or unjustly harassed or unjustly hounded and the form of abuse plain to decipher.  With the procedure reforms introduced by the Civil Justice reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process. RHC Order 1A, rule 1(f) states as one of the underlying objectives of the courts procedural powers under the Rules to be “to ensure that the resources of the Court are distributed fairly”.

29.  The principle in Henderson v Henderson has been considered and further developed in various case authorities, including Johnson v Gore Wood & Co, Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111, Healthy Living Products International Ltd v Murray [2012] 1 HKLRD 49 and Ko Hon Yue v Chiu Pik Yuk.  The courts have now adopted the following dicta of Lord Bingham in Johnson v Gore Wood & Co.

30.  There is no evidence from the applicant why he did not include those grounds from his 2^nd application in his 1^st application. I do not find anything in his 2^nd application that was not within his knowledge or not known to him at the time he made his 1^st application. There is no evidence or particulars from the applicant to explain what he means by a lack of presentation was the reason his 1^st application was refused.

31.  I have considered all the circumstances of the case, the public and private interests of the parties involved and am certain the applicant is not in danger of being shut out from bringing forward a genuine application to apply for leave for judicial review when I find his 2^nd application an abuse of process because he raises grounds that, irrespective of whether they had merit, were known to him at the time of his 1^st application and should have been raised in his 1^st application.  I will not permit him to reopen the same cause of action.  The applicant is clearly “re-litigating” and the aim of the doctrine is to prevent the mischief of bringing a second application when the first should have brought finality to the matter.

THE APPLICANT’S INTENTION BEHIND THE 2^ND APPLICATION

32.  After an appeal of an unsuccessful application for leave to apply for judicial review this applicant has no further recourse as far as his non-refoulement protection claim is concerned.  To put it bluntly, it will mean that the Immigration Department will send him home to Bangladesh because he has exhausted all avenues as far as his claim is concerned.  This is why applications for leave to apply for judicial review are made when there are unmeritorious grounds for such application in almost all cases.  The reality is applicants will not give up on any avenue as long as there is one open to them. Whilst there is an application ongoing or an appeal yet to be determined then it is not yet time for arrangements to be made to send one home.  Although this is cynical to say, time is of the essence and to delay proceedings or to maintain a proceeding is absolutely to an applicant’s advantage.

33.  Therefore, I am sure the intended and hoped for consequence of this applicant filing a 2^nd application even though it can only mirror or duplicate his 1^st application, is to prolong judicial proceedings in his name. Why else would one pay a not insignificant sum of money to file a 2^nd application that is essentially identical to his 1^st application?  This applicant is not the only one, there have recently been over a dozen applicants seeking leave to apply for judicial review of the same TCAB decision to dismiss non-refoulement protection claims twice.  To prolong judicial proceedings is to delay what will probably be the inevitable and that is to be sent home.  To deliberately prolong the inevitable must be an abuse of the process and this abuse is exacerbated when one takes into account the resources of the court are being wasted in these duplicate applications.

RESTRICTED PROCEEDINGS ORDER

34.  There is nothing stopping this applicant from filing a 3^rd and then a 4^th application of exactly the same nature after the 2^nd application is dismissed.  The applicant is an asylum seeker who is desperate to remain in Hong Kong.  Although he will not succeed, to dismiss a subsequent application requires time and time delays the inevitable.  The Immigration Department is not always aware of the details and I doubt it is aware that these subsequent applications are an abuse of process; it is only aware that a judicial application is in process and therefore all avenues are not yet exhausted so it is not yet time to send the applicant home if the last application unsuccessful.

35.  Therefore, I am of the view that this applicant should be subjected to a RPO as will other similar litigants in accordance with Ng Yat Chi v Max Share Ltd & Anor FACV No. 5 of 2004.  I find this applicant has abused, and is likely to continue abusing, the court’s process by seeking persistently to re‑litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where a RPO would be a proportionate response.  This way, there is no possibility of any further abuse.  Hence my decision to make a RPO against the applicant on the same day I dismissed his 2^nd application.

36.  The applicant is prohibited from commencing any fresh proceedings in the Court of First Instance concerning any matters involving or relating to or touching upon or leading to the proceedings in the 1^st and 2^nd application without the leave of that court.  He must first write to this court or another designated judge for that leave.  This will prevent the abuse of process prevailing.

CONCLUSION

37.  This 2^nd application was dismissed because the doctrine of estoppel by res judicata applies; the cause of action estoppel principle in this case.  However, if I am wrong and the cause of action in the 2^nd application was not identical to the cause of action in the 1^st application, then the wider res judicata principle of Henderson v Henderson applies.

38.  I imposed a RPO on the applicant on the same day the 2^nd application was dismissed, in the main, because of his unique situation in Hong Kong.  I am of the view he is likely to continue abusing the process of the Court in the same manner to hope to prolong his stay in the territory which makes such an order necessary.