GURUNG MANSINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1164/2017

[2018] HKCFI 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1164 OF 2017

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REASONS FOR JUDGMENT

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1.  The applicant is a Nepalese national who arrived in Hong Kong on 2 July 2013 and was permitted to remain for five days but did not depart. He was arrested by the police for overstaying on 29 July 2013. He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 4 September 2015 and 9 June 2017. The adjudicator of the Torture Claim Appeal Board (“TCAB”) rejected his appeal/petition on 29 June 2017.

2.  The applicant filed his first application for leave to apply for judicial review of that TCAB decision on 25 July 2017 (“1^st application”).  He requested a hearing date.  This court refused leave to apply for judicial review of that decision on 7 March 2018, see HCAL 444/2017.  A copy of the order and decision was posted to the applicant’s address supplied by him in his application on the same day.

3.  This is the applicant’s second application for leave to apply for judicial review of the same TCAB decision, this application was filed on 29 December 2017 (“2^nd application”).  The applicant filed this application before he received the result of the 1^st application which was reserved after a hearing date.  He again asked for an oral hearing and I set down a hearing date of 26 March 2018 but the applicant was absent.  By this hearing date, the 1^st application had been refused.  I dismissed the 2^nd application and issued a Restricted Proceedings Order (“RPO”) against him with reasons to be handed down at a later date.  I now hand down those reasons.

4.  This applicant was to be heard at the same time on 26 March as three other applicants who had also filed duplicate second applications. Although all acting in person, their applications were identical in form and in wording as were their affirmations.  Their reasons for delay in filing their applications and their ground of appeal were almost word for word identical bar one.  That applicant in HCAL 1105/2017 had no choice but to put forward a different ground because, unlike the other three, the adjudicator of his TCAB decision determined his appeal without an oral hearing.  This could not be a coincidence so I set all four second  applications down to be heard on the same day and wrote to all four applicants informing them that it had come to the court’s attention they had made a duplicate second application and the court would hear them first on the preliminary issue of doctrine of res judicata/abuse of process.  I gave them leave to file a further affirmation on this issue.

5.  On 26 March, all four applicants were absent at 10 am. Attempts to contact all four including this applicant on their mobile telephone numbers they had left on the court files as their contacts unanimously failed.  At 10:25am I dismissed all four, including this applicant’s application.  I issued a RPO against all four.  It has now come to my attention that this applicant had filed a Notice of Discontinuance of the 2^nd application later that morning.  That RPO nonetheless still stands.

THE ISSUES

6.  Several issues arise as a result of the 2^nd application.  Firstly, the 2^nd application is filed late, three months late; such an application should be filed within three months of the date of the decision of the adjudicator according to Order 53, rule 4.  Secondly, the doctrine of res judicata arises.  Is the 2^nd application barred by cause of action estoppel?  The cause of action he is seeking, leave to apply for judicial review has been refused once already.  He confirms in his affirmation it was refused before he files a second identical application.  However, that was impossible as the 2^nd application was filed before the 1^st application refused.  In any event, by the date of the hearing it had been dismissed.  To seek it again, the exact same action with a new action is prohibited.  Alternatively, is it barred by the Abuse of Process principles pursuant to Henderson v Henderson (1843) 3 Hare 100 which sets out a public policy rule that prevents parties from advancing matters or raising claims and defences that should have been pursued in earlier proceedings but were not so pursued.  Thirdly, in view of the identity of the applicant, an asylum seeker, the intentions behind the 2^nd application deserves serious consideration.

BACKGROUND OF THE APPLICANT’S CLAIM

7.  The basis of his claim was that if he was to return to Nepal he would be harmed or even killed by members of the Maoist party.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions, therefore I only intend summarise it here.  The applicant was born in 1990, was single and his family were farmers with a big piece of land.  The applicant’s father farmed the land and he was the only one to take care of his own father but he had brothers who tried to lay claim to it when their father died.  This land became more valuable after their father died because a road was built through it.  It became the subject of a family dispute between the applicant’s father and his paternal uncles in late 2012.

8.  One of the paternal uncles was a Maoist leader called Mangal.  He came one day with 15 to 20 people from the Young Communist League and tried to seize the family land.  A physical fight broke out between the applicant, his father, his sister and his mother and his paternal uncle.  His uncle then said he would seize the family land in his political party’s name and then left.  Later, the applicant heard that the Maoist party had put his name and his father's name on their wanted list in the village.  If this happened, then party members would try and catch those on the list and kill them.  This meant the applicant and his father had to be very careful and avoid all Maoist members when they went out.

9.  Two months later, the applicant and his father returned home one day to find that his uncle had raised Maoist Communist flags on the land to claim it so they burnt the flags.  When his uncle found out, this act of burning the flag was added to the wanted list and their names were circulated at the district level which was more serious.  The applicant and his father decided to go into hiding.

10.  In November 2012, Mangal and a group of men came to the applicant’s house late one night but he was not home so they kidnapped his father.  The applicant and his family could not find his father anywhere but he returned the next day. He had been taken to the forest and tortured.  He recognised one of the kidnappers as a man who worked for Mangal.  The applicant then gathered six friends two days later and found the man his father recognised called Suresh and beat him up with wooden sticks.

11.  A few weeks later Suresh got his revenge and had the applicant beaten up, threatened to kill him, threatened to burn his house down and threatened him with a pistol.  The applicant and the father reported this incident to the police as well as previous incidents involving Mangal but the police did not register their case as they were making report against all the Maoist people in their village.  Later, when Mangal heard about them reporting him to the police he told other villagers that he would kill their family.  In fear of their lives, the applicant’s family moved in January 2013 to a friend’s home to hide.  After this, nothing untoward happened to them.

12.  In June 2013, apparently the applicant’s father suddenly left the country without telling his family and only called them when he arrived in India to say he had left Nepal.  The applicant himself said he then decided to leave Nepal as well. He did not follow his father but went to Hong Kong in July 2013 where he had never been nor knew anyone.

THE TCAB DECISION

13.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He set out the law correctly and the key legal principles applicable to the four grounds; the torture risk, the BOR 2 risk, the BOR 3 risk and the persecution risk.  He set out the applicant’s case and considered the applicant’s credibility as well as the level of risk of his feared ill-treatment.

14.  I set out in detail in HCAL 444/2017 why the adjudicator was not convinced that the applicant fled Nepal in fear of his life.  The adjudicator set out in detail in his decision why he found on the applicant’s own facts that he believed the risk of his feared ill-treatment was low.  He found factors and explanations given by the applicant in the oral appeal that affected his credibility.  The adjudicator confirmed the decision of the Director and made a finding the applicant was unable to successfully show he was at risk of torture if he returned to Nepal, nor at risk of ill-treatment under BOR 3 or at risk of a violation of his rights under BOR 2 or had a well-founded fear of being persecuted for a Refugee Convention reason.

THE 1^ST APPLICATION – LEAVE TO APPLY FOR JUDICIAL REVIEW REFUSED

15.  I considered the applicant’s three grounds set out in his affirmation and found all grounds to be without merit.  I found no error of law by the adjudicator, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable and there was no realistic prospect of success in the applicant’s application.  Once I refuse leave to apply for judicial review, the applicant can appeal that decision to the Court of Appeal in the manner and within the time limit prescribed.  What he cannot do, is he cannot come again to this court with the same application either with the same grounds or with new grounds that he could have raised in the 1^st application.

THE 2^ND APPLICATION – SAME GROUND EXPANDED AND AN ADDITIONAL GROUND

16.  In the affirmation of this 2^nd application there is an application for an extension of time because of the delay in making this 2^nd application which is inevitable.  There is confirmation that the applicant has previously applied for leave to apply for judicial review “but leave was refused due to lack of presentation in my previous application”, paragraph 11.  I assume that may be a typing error and it should read “lack of representation” as in legal representation.  However, whether or not an error, I did not go on to consider that application for an extension of time.  As I have said above, the confirmation in the affirmation that leave was refused is misleading because at that stage there was no decision made; leave was not refused until 7 March 2018, 2 months after the date of this affirmation.

17.  The first ground is a repeat of the first ground of the 1^st application but expanded somewhat.  None of the additional particulars are new evidence the applicant did not know at the time he made the 1^st application.  It appears there is a separate and second ground that the applicant complains he was not legally represented for his appeal/petition to the TCAB and he did not know he could complain against the adjudicator’s handling of the appeal hearing.  The adjudicator did not inform him that he could complain.  He submits that he would be too scared to complain even if he could because it would hurt his chances of success.  From the outset, I can say this cannot be a ground with any merit against the adjudicator but I treated it as a ground put forward by the applicant in his 2^nd application.

THE DOCTRINE OF RES JUDICATA

Cause of action estoppel

18.  Res judicata is a generic term of which cause of action estoppel and issue estoppel are two species (R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146 at para 26).  A cause of action estoppel is an absolute bar to proceedings; where this kind of estoppel applies, its effect is to bar re‑litigation of the entire course of action including reformulation of that cause of action.  This would only be subject to fraud which would usually enable the earlier decision to be set aside.

19.  There are justifications for the doctrine of res judicata; no person ought to be vexed twice by the same cause and there is a public interest in the finality of litigation.  Parties have submitted their dispute to a decision-maker, be it a court or an arbitral tribunal and participated in the adjudicative process, each side has presented arguments and a decision has been reached on the cause of action or issue.  There would be no end to dispute resolution if parties were not bound by the decision on those matters.  The principle of cause of action estoppel and issue estoppel therefore prevent the re-adjudication in subsequent proceedings of identical courses of action or issues between the same parties which have been finally adjudicated upon already.

20.  There are a number of constituent elements in proceedings based on cause of action estoppel:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.” (Spencer Bower & Handley, para 1.02)

21.  For there to be cause of action estoppel, the cause of action in the later proceedings must be identical to the earlier proceedings, the two sets of proceedings must be between the same parties or their privies, the subject-matter in dispute must be the same, and the judgment in the earlier proceedings be final and conclusive.

22.  Further explanation on the meaning and effect of cause of action estoppel can be found in these passages in Halsbury’s Laws of England, 5^th ed, vol 12:

“1174. Meaning of ‘cause of action estoppel’. Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. To decide which questions of law and fact were determined in the earlier judgment the court is entitled to look at the judge’s reasons for his decision and his notes of the evidence, and is not restricted to the record; but as a general rule, the judge’s reasons cannot be looked at for the purpose of excluding from the scope of his formal order any matter which, according to the issues raised on the pleadings and the terms of the order itself, is included in it.”

“1175. Doctrine applicable wherever same cause of action determined on the merits. In all cases where the cause of action is really the same and has been determined on the merits, and not on some ground (such as the non-expiration of the term of credit) which has ceased to operate when the second action or claim is brought, the plea of res judicata should succeed. The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court.”

“1176. Effect of previous judgment. Although it is true that estoppel by record must be reciprocal (that is, both parties must be precluded from re-opening matters determined in a prior case), a judgment in favour of a defendant is not always as decisive in his favour on the points in issue as judgment for a claimant would be, despite the fact that it is equally conclusive of the claim brought. Where a claimant recovers judgment, it almost necessarily follows that all the issues raised by the defendant have been determined in the claimant’s favour; there must at least have been a decision on the merits. A judgment may, however, have been passed in favour of the defendant on dilatory grounds, or on one only of many alternative defences, and circumstances may have arisen entitling the claimant to judgment which were not in existence when the first claim was brought. The burden is on the defendant to show that the judgment relied on was obtained upon grounds or in circumstances which afford him a defence to the subsequent claim.”

23.  Lord Sumption in Virgin Atlantic v Zodiac [2014] 1 AC 160 describes cause of action estoppel as two parts at paragraph 22:

“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.”

24.  Lord Sumption’s description applies to the applicant’s 2^nd application in these proceedings, in particular the second part.  Not only is the second cause of action identical to the first cause of action, the two sets of proceedings are between the same parties, the subject matter in dispute is the same and my previous decision was final.  The applicant here has raised a point or ground and expanded on a ground now which was not raised in the earlier proceedings but could have with reasonable diligence and should, if the applicant felt it had merit, been raised in the earlier proceedings.  This fits squarely within Lord Sumption’s description of a cause of action estoppel.  The applicant’s 2^nd application should be barred and dismissed on that basis.

Henderson v Henderson –the wider principle of Res Judicata

25.  Alternatively, if not a cause of action estoppel, then it is still an abuse of the process of the court to raise a claim in later proceedings that could and should have been raised in earlier proceedings; the Henderson v Henderson abuse or res judicata in the wider sense.  The rule is that the court requires the parties put forward their whole case and will not permit them later to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, omission or error.  However, there may be special circumstances to this rule, which the court may take into consideration.  I do not intend to fully review that principle, suffice to say it is a principle founded on an abuse of process.  See Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at para 84(1-5), Ma CJ.

26.  The courts have now adopted the approach of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1(at 31C-E) and in deciding whether there is an abuse of process, it is wrong to adopt a dogmatic approach and hold that because a matter could have been raised in earlier proceedings it should have been, so that raising it in later proceedings is necessarily abusive.  The question whether proceedings are an abuse of process, does not offend against public interest in the finality of litigation and ensures a party is not vexed twice in the same matter should be judged broadly on the merits, taking into account the public and private interests involved and on all the facts of the case.  The crucial question is whether, in all the circumstances, a party misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.  The courts must bear in mind that there is a danger of a party being shut out from bringing forward a genuine subject of litigation.  The principle should only be applied when the facts are such as to amount to an abuse.

27.  The abuse will usually take the form of the other party being vexed or oppressed or unjustly harassed or unjustly hounded and the form of abuse plain to see.  With the procedure reforms introduced by the Civil Justice reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process. RHC Order 1A, rule 1(f) states as one of the underlying objectives of the courts procedural powers under the Rules to be “to ensure that the resources of the Court are distributed fairly”.

28.  The principle in Henderson v Henderson has been considered and further developed in various case authorities, including Johnson v Gore Wood & Co, Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111, Healthy Living Products International Ltd v Murray [2012] 1 HKLRD 49 and Ko Hon Yue v Chiu Pik Yuk.  The courts have now adopted the following dicta of Lord Bingham in Johnson v Gore Wood & Co.

29.  There is no evidence from the applicant why he did not include those grounds from his 2^nd application in his 1^st application. I do not find anything in his 2^nd application that was not within his knowledge or not known to him at the time he made his 1^st application.  There is no evidence from the applicant what he means by a lack of presentation was why his 1^st application was refused.

30.  I have considered all the circumstances of the case, the public and private interests of the parties involved and am certain the applicant is not in danger of being shut out from bringing forward a genuine application to apply for leave for judicial review when I find his 2^nd application an abuse of process because he raises grounds that, irrespective of whether they had merit, were known to him at the time of his 1^st application and should have been raised in his 1^st application.  I will not permit him to reopen the same cause of action.  The applicant is clearly “re-litigating” and the aim of the doctrine is to prevent the mischief of bringing a second application when the first should have brought finality to the matter.

THE APPLICANT’S INTENTION BEHIND THE 2^ND APPLICATION

31.  After an appeal of an unsuccessful application for leave to apply for judicial review this applicant has no further recourse as far as his non-refoulement protection claim is concerned.  To put it bluntly, it will mean that the Immigration Department will send him home to Nepal because he has exhausted all avenues as far as his claim is concerned.  This is why applications for leave to apply for judicial review are made when there are unmeritorious grounds for applications in almost all such cases.  The reality is applicants will not give up on any avenue as long as there is one open to them.  Whilst there is an application ongoing or an appeal yet to be determined then it is not yet time for arrangements to be made to send one home.  Although this is cynical to say, time is of the essence and to delay proceedings or to maintain a proceedingis absolutely to an applicant’s advantage.

32.  Therefore, I am sure the intended and hoped for consequence of this applicant filing a 2^nd application even though it can only mirror or duplicate his 1^st application, is to prolong judicial proceedings in his name. Why else would one pay a not insignificant sum of money to file a 2^nd application that is essentially identical to his 1^st application?  This applicant is not the only one, there have recently been over a dozen applicants seeking leave to apply for judicial review of the same TCAB decision to dismiss non-refoulement protection claims twice.  To prolong judicial proceedings is to delay what will probably be the inevitable and that is to be sent home.  To deliberately prolong the inevitable must be an abuse of the process and this abuse is exacerbated when one takes into account the resources of the court are being wasted in these duplicate applications.

RESTRICTED PROCEEDINGS ORDER

33.  There is nothing stopping this applicant from filing a 3^rd and then a 4^th application of exactly the same nature after the 2^nd application is dismissed.  The applicant is an asylum seeker who is desperate to remain in Hong Kong.  Although he will not succeed, to dismiss a subsequent application requires time and time delays the inevitable.  The Immigration Department is not always aware of the details and I doubt it is aware that these subsequent applications are an abuse of process; it is only aware that a judicial application is in process and therefore all avenues are not yet exhausted so it is not yet time to send the applicant home if the last application unsuccessful.

34.  Therefore, I am of the view that this applicant should be subjected to a RPO as will other similar litigants in accordance with Ng Yat Chi v Max Share Ltd & Anor FACV No. 5 of 2004.  I find this applicant has abused, and is likely to continue abusing, the court’s process by seeking persistently to re‑litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where a RPO would be a proportionate response.  This way, there is no possibility of any further abuse.  Hence my decision to make a RPO against the applicant on the same day I dismissed his 2^nd application.

35.  The applicant is prohibited from commencing any fresh proceedings in the Court of First Instance concerning any matters involving or relating to or touching upon or leading to the proceedings in the 1^st and 2^nd application without the leave of that court.  He must first write to this court or another designated judge for that leave.  This will prevent the abuse of process prevailing.

CONCLUSION

36.  This 2^nd application was dismissed because the doctrine of estoppel by res judicata applies; the cause of action estoppel principle in this case.  However, if I am wrong and the cause of action in the 2^nd application was not identical to the cause of action in the 1^st application, then the res judicata principle of Henderson v Henderson applies.

37.  I imposed a RPO on the applicant on the same day the 2^nd application was dismissed, in the main, because of his unique situation in Hong Kong.  I am of the view he is likely to continue abusing the process of the Court in the same manner to hope to prolong his stay in the territory which makes such an order necessary.