ESTRADA MICHELLE DE LA ROCA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION

CACV 563/2019

[2020] HKCA 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 563 OF 2019

(ON APPEAL FROM HCAL 546/2018)

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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 4 December 2019 in HCAL 546/2018 to strike out and dismiss her 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 21 April 2017.

Background

2.  The applicant is a Filipino national.  She last arrived in Hong Kong on 13 June 2012 and was permitted to stay as a visitor until 27 June 2012.  She overstayed until she surrendered herself to police on 15 May 2014.  The applicant lodged a non-refoulement claim on 22 May 2014. 

3.  The applicant’s claim was based on the fear that, if she returns to the Philippines, she would be harmed or even killed by her husband. 

4.  By two notices of decision dated 15 June 2015 and 24 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 29 November 2016.  The Board dismissed the applicant’s appeal on 21 April 2017.

First application for leave for judicial review: HCAL 278/2017

6.  On 8 June 2017 the applicant sought leave from the court 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 (HCAL 278/2017, [2018] HKCFI 473) refused leave on 13 March 2018.  DHCJ Woodcock found that none of the applicant’s grounds were supported by particulars and they were not reasonably arguable.  She also found that there was no error of law or procedural unfairness by the Board, and that there was no prospect of success in the intended judicial review. 

7.  The applicant did not appeal against the refusal of leave in HCAL 278/2017.

Second application for leave for judicial review: HCAL 546/2018

8.  Instead, on 3 April 2018, the applicant sought leave for a second time from the court in HCAL 546/2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of her failed attempt in HCAL 278/2017.

9.  Following a hearing on 15 August 2019 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 546/2018 on 4 December 2019.  The Judge held that it was an abuse of process for the applicant to re-litigate her case by bringing a second judicial review of the same Board decision. 

Appeal to this Court

10.  On 9 December 2019, the applicant filed her Notice of Appeal against the Judge’s decision.  Apart from indicating that she did not accept the Board’s decision, there is no other substantive ground set out in the Notice of Appeal.

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

12.  Pursuant to the directions of the Registrar of Civil Appeals of 12 December 2019, the Director filed an affirmation of an immigration officer giving an account of the procedural history leading up to the present appeal.  The applicant did not file any evidence in reply.

13.  This Court directed on 15 June 2020 that the appeal be listed for hearing on 18 August 2020 with an unless order that the applicant must lodge her written submissions by 13 July 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged. 

14.  The applicant failed to lodge any submissions as directed.  Accordingly, the hearing date of 18 August was vacated and this appeal is processed on paper without an oral hearing.

Discussion

15.  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 inform 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 the appeal as an abuse of process in such circumstances.

16.  In the present case, the applicant filed two applications for leave for judicial review 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 her duty of full and frank disclosure in making the second application which was made ex parte.

17.  Further, it is an abuse of process for the applicant to re-litigate her 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.

18.  Despite the Judge’s reason for refusing leave in the second application, the applicant had not provided any explanation for doing so in her documents lodged in this appeal.  As she had no arguable basis for making a second attempt in judicial review against the same decision, the appeal is hopeless.  In the circumstances, the Notice of Appeal should be struck out.

19.  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.

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