RE FATIMA MRS

CAMP 146/2018

[2019] HKCA 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 146 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 1133 OF 2017)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  By the CALL-1 Form dated 2 August 2018, Deputy High Court Judge Josiah Lam (“the Judge”) dismissed the applicant’s application for leave to apply for judicial review for abuse of court process and as an unjustified renewed application for leave for judicial review.   The applicant’s application for leave to appeal out of time against the Judge’s decision was refused by the Judge on 20 September 2018.  By way of summons taken out on 27 September 2018, the applicant now renews her leave application before this Court.

2.  Having considered all the materials and the applicant’s written submission, we consider it is appropriate to determine the application without a hearing on the basis of the applicant’s written submission only, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

BACKGROUND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1775. We shall not repeat the same here.

4.  Brief stated, the Applicant is a national of Bangladesh.  On 13 September 2013, she came to Hong Kong to work as a domestic helper.  Her employment contract was terminated prematurely and she was required to leave in two weeks’ time.  She did not depart before the deadline and overstayed.  On 6 May 2014, she surrendered herself to the police and on 10 May 2014, she lodged her non-refoulement claim.

5.  Her claim was based on her fear that, if she returned to Bangladesh, she would be harmed or even killed by some people of the Awami League (“AL”) because she witnessed those people killing her husband.  She further claimed that she was requested by Monir, a supporter of AL who killed her husband, to join AL and to have courtship with him or he would kill her and her younger brother.

6.  By a notice of decision dated 7 August 2015, the Director rejected the applicant’s claim.  The Director’s decision covered the BOR 3 risk[1], the persecution risk and the torture risk.    By a notice of further decision dated 2 February 2017, the Director also assessed the applicant’s BOR 2 risk, and decided against her.

7.  The applicant appealed against the Director’s decisions to the Torture Claims Appeal Board (“the Board”).  The applicant was absent for the hearing held on 10 February 2017 and the Board dismissed the appeal by it decision dated 23 June 2017.   The Board found that even on the applicant’s own evidence, she had not proved any real risk of harm faced by her if refouled.  It was her case that after the death of her husband, she had returned to her home area to stay with her friend and worked in the same factory before leaving for Hong Kong.  This showed that she did not worry for her safety or if she would be located by the AL people as alleged. The Board took the view that the applicant’s intention to come to Hong Kong was for work rather than seeking protection.  She only lodged her non-refoulement protection claim after she was arrested for overstaying by the police.  Accordingly, the Board was not convinced that she was a genuine asylum seeker.  The Board also found that internal relocation was a viable option for the applicant.  The applicant had failed to establish her claim under all applicable grounds and her appeal was dismissed.

HCAL 345/2017

8.  On 30 June 2017, the applicant applied to the court in HCAL 345/2017 for leave to apply for judicial review.  The intended judicial review was against the decisions of the Director and the Board.  The form 86 contained no ground for seeking reliefs and in her supporting affirmation filed on the same day, she complained that the Director and the Board failed to consider her evidence and properly assess her claim under all applicable grounds; failed to conduct sufficient independent enquiry on the relevant country of origin information (“COI”); cherry-picked COI and failed to take into account of extended state acquiescence.

9.  Deputy High Court Judge Woodcock heard the application on 26 September 2017 and dismissed it on 1 December 2017.  The applicant did not appeal against DHCJ Woodcock’s decision.

HCAL 1133/2017

10.  The applicant made another application for leave to apply for judicial review on 21 December 2017. The intended judicial review was only against the Board’s decision.

11.  In Form 86 and her affirmation, the applicant complained the Board acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant; relied on information that was not officially recognised or simply hearsay or outdated cases.

12.  The applicant also complained that the Director only served the appeal bundle on her seven days before the Board hearing. She did not have sufficient time for proper preparation of the appeal given that she lacked legal representation and language assistance. The applicant said she was confused and therefore absent from the Board hearing.

13.  In paragraph 11 of Form 86, the Applicant disclosed that she had previously applied for leave for judicial review before DHCJ Woodcock.  The applicant said that application was refused ‘due to lack of presentation’.

14.  On 2 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [37] – [45] for his refusal to grant leave :

“ Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[2]

Renewed application for leave for judicial review

39. The Applicant had previously applied for leave for judicial review against the Board and the Director before Deputy High Court Judge Woodcock in HCAL 345/2017. She was heard by the Judge on 26 September 2017. On 1 December 2017, the Judge refused her application. The Judge found there was no merit in the Applicant’s complaints against the Board and there was no room for the Applicant to seek judicial review against the Director.[3]

40. There was no appeal against the Judge’s ruling in HCAL 345/2017.

41. I have reviewed the papers in HCAL 345/2017. In the affirmation in that case, the Applicant expressed her grounds of judicial review in a different manner. Basically, she complained the Director and the Adjudicator did not understand her fear; failed to conduct sufficient enquiry; failed to consider her claim properly and fairly; failed to explain their decisions clearly.

42. The Applicant now said there was a ‘lack of presentation’ in her earlier application for leave for judicial review in HCAL 345/2017. She gave no details. The Applicant had not made out a good reason for renewed application of judicial review.

43. The Applicant now worded her complaints differently. She even added an allegation that she was only served the appeal bundle shortly before the Board hearing. However, all these complaints could have been expressed or included in her previous application for judicial review in HCAL 354/2017. The Applicant had not done so. She could not do it now.

44. In the absence of a good reason for renewed application for leave for judicial review, the Applicant’s current action must be deemed as abuse of court process. Such unjustified application cannot be entertained. I need not and should not go on to consider the merits of her renewed application with respect to the decisions of the Director and the Adjudicator.

Conclusion

45. I refuse to grant the Applicant leave for her unjustified renewed application for leave for judicial review.”

THE APPEAL

15.  On 23 August 2018, the applicant sought leave to appeal against the Judge’s decision out of time.  This was refused by the Judge in the decision handed down on 20 September 2018 (“the Leave Decision”) for lack of reasonable prospect of success of the intended appeal.

16.  In the affirmation filed by the applicant in support of the summons dated 27 September 2018, the applicant provided the following grounds of appeal :

“ [The Judge] was wrong in law in holding that there was no state acquiescence or involvement.

[The Judge] failed to provide detailed reason in support of his decision.”

17.  In the written submission of the applicant, she just set out some general legal principles and case law in relation to torture claims without relating them to her own case.

DISCUSSION

18.  In our view, the applicant failed to provide any viable ground to appeal against the CALL-1 Form and the Leave Decision of the Judge.  The grounds of appeal as set out in the summons are general and not related to the findings made in the Judge’s decisions.

19.  In the Leave Decision, the Judge had clearly explained that notwithstanding the excusable short delay for the applicant to bring the leave application, the crucial question was whether there was any reasonable prospect of success of applicant’s intended appeal. The merit of the applicant’s case was duly considered by the Judge at [37] – [45] of the CALL-1 Form (as set out in [14] herein).  We agree with findings of the Judge and take the view that it is clearly an abuse of process for the applicant to bring a second application for leave to apply for judicial review in respect of the same decision of the Board after she failed to get leave from DHCJ Woodcock.  The Judge was plainly right to refuse the applicant’s leave application “for her unjustified renewed application for leave for judicial review”.

20.  In any event, we are satisfied that the findings of the Board and the decisions of the Judge and DHCJ Woodcock were supported by evidence and fully justified.  We do not see any errors of law or procedure in the proceedings before the Board and the Director.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.

21.  Accordingly, we agree with the Judge that an extension of time should not be granted to the applicant to bring a hopeless appeal.  The summons of 27 September 2018 is dismissed accordingly.

22.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.