RE SATNAM SINGH

CACV 160/2020

[2020] HKCA 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 160 OF 2020

(ON APPEAL FROM HCAL 236/2018)

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JUDGMENT

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Hon Lam VP (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”) on 27 May 2020 in HCAL 236/2018. By that decision, the Judge struck out and dismissed the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 April 2017.

Background

2.  The applicant is an Indian national.  He arrived in Hong Kong on 19 March 2013 and was permitted to stay as a visitor until 2 April 2013.  He overstayed and was arrested by police on 30 July 2013, and lodged a torture claim on 1 August 2013.  The Unified Screening Mechanism commenced in March 2014 and his claim was subsequently assessed on all applicable grounds for non-refoulement protection. 

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his neighbours for having witnessed a murder. 

4.  By notices of decision dated 12 February 2016 and 23 November 2016, the Director of Immigration (“the Director”) assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4]. 

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 December 2016.  The Board dismissed the applicant’s appeal on 7 April 2017.

First application for leave for judicial review: HCAL 164/2017

6.  On 28 April 2017 the applicant sought leave to apply for judicial review against the Board’s decision.  Following a hearing at which the applicant attended in person, Deputy High Court Judge Woodcock refused leave on 5 January 2018 (HCAL 164/2017).  DHCJ Woodcock found that none of the applicant’s grounds were reasonably arguable, that there was no error of law or procedural unfairness by the Board, and that there was no realistic prospect of success in the intended judicial review. 

7.  The applicant did not appeal against the refusal of leave in HCAL 164/2017.

Second application for leave for judicial review: HCAL 236/2018

8.  Instead, on 13 February 2018, the applicant sought leave a second time in HCAL 236/2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of his failed attempt in HCAL 164/2017.

9.  Following a hearing at which the applicant attended in person before the Judge, the Judge struck out and dismissed the application for leave to apply for judicial review in HCAL 236/2018 on 27 May 2020.  The Judge held that that 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 decision.

Appeal to this Court

10.  On 8 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal were that he would face hardship if he were to return to his home country and that the Board relied on unreliable, outdated or non-credible sources of information in forming its decision, and engaged in groundless speculation.

11.  On the same day, the Applicant agreed in writing that the appeal could be heard by 2 judges.

12.  The Court directed on 1 September 2020 that the appeal be listed for hearing on 29 October 2020.  The Court also made an unless order requiring the applicant to lodge his written submissions by 30 September 2020, failing which the hearing date would be vacated and the Court would process the matter without any oral hearing based on materials already filed. 

13.  The applicant failed to lodge any submission as directed.  Accordingly, the hearing date of 29 October 2020 was vacated and this appeal is processed on paper without an oral hearing.

Discussion

14.  In Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380, it was held that it is an abuse of process for an applicant to file a second application for leave for judicial review in respect of the same Board decision without disclosing in the Form 86 or affirmation in support, or informing the High Court Registry, that there was a previous unsuccessful application for leave for judicial review of the same decision.  It was further held that it would be appropriate to strike out an appeal in such cases as an abuse of process.

15.  In the present case, the applicant filed two applications for leave for judicial review in respect of the same decision and the second application was struck out and dismissed by the Judge.  The existence of the first application was not mentioned in the Form 86 or affirmation in support for the second application.  Like the applicant in Khan Kamran, the applicant had acted in breach of his duty of full and frank disclosure in making the second application which was made ex parte.

16.  Further, it is an abuse of process for the applicant to re-litigate his case by bringing a second judicial review of the same Board decision: see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at §16; 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.

17.  Despite the Judge’s refusal leave in the second application on the ground abusive re-litigation, the applicant had not provided any explanation for not referring to his first judicial review in the Form 86 and any justification for re-litigation in his documents lodged in this appeal.  As he had no arguable basis for making a second attempt in judicial review against the same decision, it is plain that the appeal is an abuse of process.  In the circumstances, the Notice of Appeal should be struck out.

18.  For these reasons, we strike out the Notice of Appeal and dismiss the appeal accordingly.