KHAN KAMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 456 /2019

[2020] HKCA 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2019

(ON APPEAL FROM HCAL NO 426 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 25 September 2019^[1] striking out the application for leave to apply for judicial review of the decision the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non‑refoulement protection claim. The appeal is dealt with on paper without an oral hearing for the reasons to be mentioned below.

2.  The applicant is a national of Pakistan of 32 years old.  He entered Hong Kong illegally on 1 October 2013 and was arrested by the police on the same day.  He lodged a claim for non-refoulement protection on the ground of risk of cruel, inhuman or degrading treatment or punishment on 5 October 2013. His claim was made on the basis that he will be harmed or killed by the local supporters of the rival political party Pakistan Peoples Party if he returns to Pakistan.

3.  By a Notice of Decision dated 22 March 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all then applicable grounds including torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  On 26 July 2016, the applicant lodged an application for late filing of the notice of appeal with the Board.  The Board rejected his application on 23 March 2017, as his notice of appeal was filed after the expiration of the 14-day period stipulated under section 37ZT(2) of the Immigration Ordinance and the adjudicator found no good reason for his serious delay of more than 15 weeks.

The first leave application – HCAL 466/2017

5.  On 28 July 2017, more than 4 months after the Board’s decision, the applicant filed an application for leave to apply for judicial review against the decision of the Board^[5] under HCAL 466/2017.  The leave application filed out of time was refused by Deputy High Court Judge Woodcock on 13 March 2018.  She was satisfied there was no evidence of procedural unfairness, error of law or a failure to adhere to a high standard of fairness on the part of the adjudicator.

The second leave application – HCAL 426/2018

6.  The applicant did not appeal against the decision of DHCJ Woodcock but took out a second application for leave to apply for judicial review against the Board’s decision^[6] on 16 March 2018 under HCAL426/2018. 

7.  His grounds for judicial review are substantially the same as the ones he relied on in his first leave application save that he added a new ground on misdirection in law in the second leave application.

The judge’s decision

8.  DHCJ Bruno Chan heard the applicant’s second leave application on 25 June 2019 and 19 July 2019.  At the first hearing on 25 June, the judge asked the applicant why he made a second application after his application was refused by DHCJ Woodcock.  The applicant could not give any explanation.  After the judge reserved his decision, he asked the applicant to return to court on 19 July to try to find out from the applicant why he lodged the second leave application instead of filing an appeal.  The applicant then explained he made the second application to ask the court to reconsider his case and he did not have much awareness. 

9.  The judge struck out and dismissed the second application on 25 September 2019.

10.  He considered that the principle of res judicata applies and it is 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 and for failing to inform the High Court Registry of the same when he filed his second application, resulting in much judicial and public resources being wasted in processing these proceedings^[7]. 

The grounds of appeal and the Registrar’s directions

11.  The applicant filed a notice of appeal against the decision of DHCJ Bruno Chan on 30 September 2019.  The following grounds of appeal were stated in the notice of appeal:

(1)  the judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)  the judge failed to provide detailed reason in support of his decision; and

(3)  the judge ignored the country of origin information while preparing his judgment dated 25 September 2019.

12.  On 2 October 2019, the Registrar of Civil Appeals gave directions to the applicant for the conduct of this appeal and copied his letter to the Board and the Department of Justice (for the Director).  The Registrar pointed out that the appeal is lodged against the decision of DHCJ Bruno Chan by which the second leave application was struck out as an abuse of process, citing Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763.  The Registrar directed that upon the lodging of the hearing bundle, a hearing date would be fixed before a division of two judges to consider whether to strike out the appeal.  Leave was given to the Board and the Director to file and serve an affidavit in opposition and to the applicant to file and serve an affirmation in reply.  The lodging of skeleton arguments would be governed by Practice Direction 4.1, namely, not less than 28 days before the hearing for the applicant’s skeleton argument and not less than 14 days before the hearing for the Board and the Director.

13.  On 21 October 2019, the Board wrote to the Registrar stating that it intended to take a neutral stance and sought to be excused from attendance of the hearing.

14.  On 12 November 2019, the Director filed an affirmation setting out the background information of the events leading to the appeal and the procedural history of the first leave application and the second leave application.  The applicant did not file any affirmation in reply.

15.  The applicant lodged the hearing bundle on 10 December 2019 and a notice of hearing was issued by the Registrar on 7 January 2020 that the appeal will be heard before a panel of two judges on 10 March 2020 with 30 minutes estimated.  The applicant was reminded in the notice of hearing to comply with the directions of the Registrar on 2 October 2019.

Non-compliance of unless order

16.  The directions given by the Registrar on 2 October 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal provided that in the event he fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

17.  On 5 March 2020, the Department of Justice wrote to inform the court that the applicant was re-arrested by the police for failing to answer bail and has been detained.

18.  The hearing of the appeal on 10 March 2020 was adjourned to 26 May 2020 due to the general adjournment of court proceedings for public health reasons.  On 17 April 2020, Kwan VP extended the time for the applicant to lodge a skeleton argument to 8 May 2020.

19.  The Director lodged a skeleton argument and list of authorities on 25 February 2020 and a supplemental skeleton argument on 12 May 2020 to cite an additional authority of the Court of Appeal handed down on 7 May 2020 (Mohammad Mongal Mia [2020] HKCA 293).

20.  The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 26 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Analysis

21.  Ms Jenny Cheung for the Director pointed out that the applicant did not seek to challenge the judge’s ruling on res judicata in the grounds of appeal.  She submitted that the applicant’s second leave application is a blatant attempt to re-litigate the same matter and is clearly an abuse of process of the court, citing Bepary Shahealom v Torture Claims Appeal Board 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.

22.  In a recent judgment of the Court of Appeal in Mohammad Mongal Mia, Barma JA held that whilst there can be no doubt that to seek to bring multiple judicial reviews in respect of the same decision of the Board is prima facie an abuse of process, in principle, an appeal against the striking out of another leave application for judicial review, where the earlier proceedings have been disclosed by the applicant, is not necessarily itself an abuse of process (whether or not it has any prospect of success is a different matter).  In that case, the applicant mentioned in his supporting affirmation in the second leave application that his previous application was unsuccessful “due to lack of presentation” and sought an extension of time to apply for judicial review.  The judge hearing the second application noted the previous unsuccessful application, he applied the principle of res judicata and ordered the application to be struck out and dismissed.

23.  The Court of Appeal in Mohammad Mongal Mia did not think it appropriate to simply strike out the appeal and instead dismissed the appeal on the merits on the basis that the only ground on which the second leave application was dismissed was for abuse of process, being res judicata. As this basis for dismissal was not addressed in the notice of appeal and the applicant had entirely failed to identify any ground on which the appeal court should interfere with the judgment below, his appeal was wholly without merit and should be dismissed (at §§21 to 23).

24.  Ms Cheung submitted that even if this appeal is not struck out for abuse of process, in light of the fact that the only basis the second leave application was struck out by the judge is res judicata and given the applicant’s failure to identify any ground on which the appeal court should interfere with the judgment below, this appeal is without merit and should likewise be dismissed.

25.  In the present situation, the applicant did not disclose in his supporting affirmation for the second leave application or inform the High Court Registry of his unsuccessful first leave application, against which there was no appeal.  This is a breach of duty on his part as the applicant of an ex parte application to make full and frank disclosure.  As noted by Lam VP in Begum Khadija v Torture Claims Appeal Board at §23, such breach of duty amounted to a serious abuse of process.  In Begum Khadija the applicant misquoted the date and particulars of the Board’s decision in her Form 86 and the supporting affirmation in the second leave application, and because of the wrong references the Registry was unable to detect the prior application.  In this instance, the applicant did provide the correct references of the Board’s decision so the Registry was able to detect the previous application and the judge was informed.  Nevertheless, he had withheld vital information from the court that he had made a previous unsuccessful application to seek judicial review of the same decision and this is a serious breach of the duty to make full and frank disclosure.

26.  It would be appropriate to strike out the notice of appeal in this instance on the ground there is abuse of process in that the applicant had attempted to re-litigate the same matter by lodging his second leave application against the same decision of the Board and there is breach of the duty to make full and frank disclosure in the ex parte application.

27.  In any event, even if the appeal is not struck out, it must be dismissed on the basis that the appeal is wholly without merit as the only ground for the judge to strike out the second leave application is res judicata and the applicant has entirely failed to identify any ground on which this court should interfere with the judgment below.

28.  We therefore strike out and dismiss the appeal.

29.  We wish to point out that on the available documents, it does not appear that in assessing the applicant’s non-refoulement claim, the Director has assessed and determined the BOR2 risk as regards the applicant^[8].  This was notwithstanding the Director’s letter dated 5 April 2017 to the applicant inviting the submission of additional facts (if any) relevant to a claim for non-refoulement on the BOR2 risk.  If that is the position, the Director should consider remitting this to the Board for reconsideration.