ALAM JAHANGIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1235/2024

[2024] HKCFI 3345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1235 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 27 February 2018 (“the Board’s Decision”), which dismissed his appeal against the Director’s Notice of Decision dated 18 August 2016 rejecting his non-refoulement claim.

2.  The Court discovered that the applicant had made the same application in the previous action HCAL 1754 of 2018 (“his previous action”). This action is a duplication of his previous action. He made this action without disclosing his previous action.

3.  The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

4.  The applicant was absent at the hearing on 13 November 2024. In the circumstances, he is deemed to waive his right to show cause why RPO should not be imposed on him. I shall deal with the application on the papers.

The procedural history

5.  The applicant is a Bangladeshi national. He came to Hong Kong on 14 May 2014 illegally and was arrested by police on the same day. He lodged a non-refoulement claim on 17 May 2014. He claimed that if refouled, he would be harmed or even killed by Mr. Kalam, a member of the Awami League (“AL”) and his companions.

6.  By Notice of Decision dated 18 August 2016, the Director refused his claim on the applicable risks.

7.  The applicant appealed to the Torture Claims Appeal Board (“the Board”). By the Board’s Decision, the Board dismissed his appeal on all applicable risks for the reason that the Board found the applicant not a credible witness and he had fabricated and concocted his evidence to advance a claim for non-refoulement protection. See paragraph 56 of the Board’s Decision.

8.  His application for leave for judicial review of the Board’s Decision was late for 3 months. A hearing was fixed for him to appear before the court. He was absent. His application was considered on paper and the Court refused to extend time for him to apply for leave to apply for judicial review of the Board’s Decision (“the Court’s Decision”).

9.  The applicant filed a summons on 7 October 2020 for extension of time to appeal against the Court’s Decision. His application was refused by the Court of the First Instance on 15 September 2021. He appealed to the Court of Appeal. The Court of Appeal dismissed his appeal on 11 March 2022. The Court of Appeal further said in its Judgment that they had separately considered the Board’s decision. They did not discern any legal errors, irrationality or procedural irregularities. They agreed with the Judge that the intended judicial review had no prospect of success and the Judge was correct in refusing to extend the time for apply for judicial review.

10.  On 31 August 2022, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal out of time. By its Judgment dated 30 September 2022, the Court of Appeal dismissed his application.

Discussion

11.  The Court of Appeal in Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2020] HKCV 971, Hon Lam VP, Barma and Au JJA, 27 November 2020 at paragraph 23 held:

“In Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal held that it is an abuse of process for an Applicant to file a second application seeking judicial review in respect of the same Board decision and it was a breach of the duty of full and frank disclosure to make such application without stating that there had been a previous unsuccessful application for leave for judicial review of the same decision. Such application is liable to be struck out. It was further held that it would be appropriate to strike out an appeal against such decision as an abuse of process in such circumstances.”

12.  The applicant is in clear abuse of process and his application should be struck out.

13.  Accordingly, I strike out his application for leave to apply for judicial review.

The RPO

14.  Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

15.  RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

16.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. He was absent at the hearing. This Court therefore takes the view that the applicant has no reason to object to the RPO to be imposed on him.

17.  I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the Court should otherwise direct.

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)  Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)  No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.

(11)  This order shall cease to have effect at the end of 5 years from the date of this order.

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

18.  The applicant’s application is struck out.

19.  RPO in terms of paragraph 17 be made against the applicant.