RE KHATUN MST ASMA

CAMP279/2019

[2021] HKCA 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 279 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 89/2018)

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J U D G M E N T

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

1.  This is an application to apply for relief from sanction in respect of the order of this court dated 8 July 2020 dismissing the applicant’s application for leave to appeal dated 7 November 2019. The order dated 8 July 2020 was made following the applicant’s voluntary request on 6 July 2020 for withdrawal of her application for leave to appeal.

2.  We have considered the documents filed by the applicant and we are of the view that the application may properly be disposed of on paper.

Background

3.  On 19 July 2019, Deputy High Court Judge Bruno Chan (“judge”) handed down a decision refusing leave to the applicant’s second application for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board / adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 19 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 29 June 2016 and 28 April 2017 rejecting the applicant’s non-refoulement claim. 

4.  The applicant is a national of Bangladesh.  She came to Hong Kong to work as a foreign domestic helper on 22 November 2013.  She overstayed after her contract was terminated prematurely and was arrested by the police on 22 October 2014.  She lodged a non-refoulement claim on 20 December 2014.

5.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the Board at [23] to [32] of the Board’s Decision.

6.  By a Notice of Decision dated 29 June 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

7.  By a Notice of Further Decision dated 28 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

8.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 May 2017, the Board dismissed the appeal on 19 June 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

9.  At [37] of the Board’s Decision, the Board found that the risk of harm to the applicant from the opposing political party was very low.  The Board was also satisfied at [46] that internal relocation would be viable.

First application for leave for judicial review: HCAL 357/2017

10.  On 4 July 2017, the applicant sought leave from the court to apply for judicial review against the Board’s Decision.  DHCJ Woodcock found that none of the applicant’s grounds was 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 and dismissed her application on 22 December 2017. 

11.  The applicant did not appeal against the refusal of leave in HCAL 357/2017.

Second application for leave for judicial review: HCAL 89/2018

12.  Instead, on 18 January 2018, the applicant made a second application in HCAL 89/2018 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 357/2017.

13.  Following an oral hearing before DHCJ Bruno Chan (the judge), the judge struck out and dismissed the application for leave to apply for judicial review in HCAL89/2018 on 19 July 2019.  The judge held that that it was an abuse of process for the applicant to re-litigate her case by bringing a second judicial review in respect of the same Board decision.

Application for extension of time to appeal

14.  The applicant was late in bringing the intended appeal against the dismissal of her second application for judicial review.  By a summons dated 5 August 2019, the applicant sought leave to appeal out of time from the judge’s decision on 19 July 2019.  On 23 August 2019, the judge dismissed her application.  On 7 November 2019, the applicant renewed her application before the Court of Appeal.  This was the application dismissed by the order of 8 July 2020.

15.  In her affirmation filed on 7 November 2019, the applicant deposed that:

“[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”

16.  On 8 November 2019, Master Au Yeung, Registrar of Civil Appeals directed that if the applicant did not agree the application for leave to appeal should be dismissed for being an abuse of process, she should file written submissions to explain why that was the case.

17.  On 12 December 2019, the applicant filed a skeleton submission in which she raised the following grounds:

(1)  the Board’s Decision failed to meet the high standard of fairness;

(2)  the Board failed to consider the Country of Origin information (COI) and failed to scrutinize the Director’s decision.  The Board erred in adopting a practice of not questioning or finding fault with the Director’s Decision; and

(3)  the Board failed to act fairly or meet the minimum level of procedural fairness.

18.  On 6 July 2020, the applicant filed a summons to withdraw the application for leave to appeal in which she stated:

“I want to withdraw my court of application. I am willingly requesting to dismiss my application, please stop all the further procedures of my court of application and oblige me thereby.”

19.  The applicant deposed to the same in her affirmation dated 6 July 2020.  Her application for leave to appeal was therefore dismissed on 8 July 2020.

20.  However, on 28 October 2020, the applicant took out a summons in which she stated:

“Apply for relief under the unless court order from the Court of Appeal dated 8^th of July 2020 the applicant is requesting to re-open her application as her life is still in danger in Bangladesh.”

21.  On 14 December 2020, the Registrar of Civil Appeals directed that the applicant should consider withdrawing the application on 28 October 2020 because the applicant erroneously assumed the order on 8 July 2020 was an unless order and the application was therefore liable to be dismissed.  If the applicant did not agree, she should file written submissions before 7 January 2021 explaining why the summons dated 28 October 2020 should not be dismissed.  The applicant failed to file the written submission as directed.

Discussion

22.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

23.  The order dated 8 July 2020 dismissing the application for leave to appeal was made upon the applicant’s request for withdrawal or dismissal of the same on 6 July 2020.  The order dated 8 July 2020 was not an unless order (as the applicant alleged) or an order made due to failure to comply with any rule or court order. There was accordingly no basis for the applicant to seek relief from sanction under RHC Order 2 rule 5 or the inherent jurisdiction of this court.  The applicant has failed to file any written submissions to contend otherwise, despite being notified of the need to do so by the Registrar’s directions on 14 December 2020.

24.  We also do not see any basis for the applicant to seek to re-open the application for leave to appeal.  The summons dated 28 October 2020 must therefore be dismissed.

25.  Further, although in the light of our decision it is not necessary to deal with the merits of the application for leave to appeal dated 7 November 2019, we would observe that the application for leave to appeal was entirely without merit.

26.  The applicant did not disclose to the judge a previous unsuccessful application for leave to judicial review against the same Board Decision in either her Form 86 or supporting affirmation.  This amounts to an abuse of process and thus the judge was right to dismiss the application, and any intended appeal should be struck out: Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]. This also applies to an application to appeal out of time (Nahid Mohammad [2020] HKCA 735, per Au JA).

27.  As for the applicant’s assertion that it is unsafe for her to return to Bangladesh, we note that the Board has given detailed consideration as to the threat and the viability of internal relocation in dismissing her appeal to the Board.  The judges in both applications for judicial review have considered that there was no public law error in the Board’s Decision, and we agree. 

28.  We have considered the grounds for the intended appeal in the affirmation dated 7 November 2019.  These grounds were bare assertions and lacked particulars.  These grounds are therefore bound to fail and the intended appeal is accordingly wholly without merit.

29.  For the foregoing reasons, the application of 28 October 2020 is dismissed.