RE AKTHER LIMA

CACV 532/2019

[2020] HKCA 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 532 OF 2019

(ON APPEAL FROM HCAL NO. 427 of 2018)

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JUDGMENT

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Hon Chu JA 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”) given on 13 November 2019 striking out and dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 27 July 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 30 July 2015 and 24 October 2016 rejecting her non-refoulement claim.

2.  The appellant is a national of Bangladesh. She arrived in Hong Kong on 16 November 2013 and was given permission to remain as a domestic helper until 16 November 2015 or within 14 days of the termination of her employment contract, whichever is earlier.  On 2 January 2014, her employment contract was terminated.  She did not depart and overstayed in Hong Kong.  She was arrested by the police on 7 February 2014. On 12 February 2014, she raised a non-refoulement claim.

3.  The applicant’s claim is based on her fear of being persecuted by the Bangladesh government, and harmed or killed by her abusive husband and her creditor.  Her case was set out in detail in [6] of the Director’s first decision and summarised by the Judge in [2] to [4] of the Form CALL-1 dated 13 November 2019, [2019] HKCFI 2369.

4.  The applicant’s case, in brief, is that she is a member of Jamaat-e-Islami (“JI”) while her husband is a supporter of Awami League (“AL”).  She claimed that owing to difference in political opinions, they had frequent quarrels, during which her husband would become violently abusive towards her.  Eventually in 2013, she left her husband, taking their daughter with her, and returned to her maiden home.  For the purpose of coming to Hong Kong to work, she borrowed a loan from a money lender to pay for the agency fees. After her employment contract was terminated, she could not meet the repayment. Her family told her that the creditor was looking for her.  The claimant also claimed that she would be in danger if she returned to Bangladesh because the government is ruled by AL and she will be persecuted for her association with JI. 

5.  By his decision dated 30 July 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], persecution risk[2], and BOR 3 risk[3] grounds.  On 13 August 2015, the applicant filed with the Board an appeal against the Director’s decision. 

6.  By a further decision dated 24 October 2016, the Director rejected the applicant’s claim under the BOR 2 risk[4] ground. 

7.  The Board held a hearing on 18 January 2017. By its decision dated 27 July 2017, the Board dismissed the appeal having regard to all the four applicable grounds. 

8.  On 4 August 2017, the applicant filed a Form 86 in HCAL 484/2017 to apply for leave to judicially review the Board’s decision.  After holding an oral hearing, Deputy High Court Judge Woodcock refused to give leave to apply for judicial review.  Her decision and the reasons for decision were contained in a Form CALL-1 dated 9 March 2018, [2018] HKCFI 451.

9.  The applicant did not appeal against the decision. 

10.  On 16 March 2018, the applicant filed a second Form 86 together with a supporting affirmation in the action below (HCAL 427/2018) to seek leave to apply for judicial review against the same decision of the Board.  She put forward nine grounds for seeking relief, eight of which were identical to those she relied on in HCAL 484/2017.  

11.  The Judge heard the applicant’s application at an oral hearing.  By his decision made on 13 November 2019, the Judge ordered that the application be struck out and dismissed as an abuse of process.  He gave his reasons at [12] of the Form CALL-1 as follows:

“Clearly the principle of res judicata applies, and that it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court under HCAL 484/2017, and also for failing to inform the Registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.”

12.  On 21 November 2019, the applicant filed a notice of appeal together with an affirmation to appeal the Judge’s decision. The notice of appeal set out the following grounds of appeal, which were repeated in the supporting affirmation:

(1)  The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The Judge failed to provide detailed reasons in support of his decision.

(3)  The country of origin information was ignored.        

13.  The applicant had also lodged a written submission on 6 July 2020, which advanced two grounds of argument.  The first is that high standards of fairness are required given the importance of the decision to the applicant, relying on Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and ST v Betty Kwan[5] [2014] 4 HKLRD 277.  Alternatively, it was said that as the appeal before the Board was a rehearing, the Board erred in its approach in that it should have considered matters such as the country condition.  The second ground is that the decision maker is under a common duty to act fairly, citing Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D, and Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217.

14.  Pursuant to the direction of the Registrar for Civil Appeals, the Director had filed an affirmation to provide the court with the background information and the procedural history of the applicant’s application.

15.  We heard the appeal on 10 August 2020.  At the hearing, the applicant said she could not return to her home country because she still had many problems there.  She also stated that her claim was true and the Director could check to verify.

16.  We are of the view that the matters stated in the notice of appeal and the applicant’s written and oral submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant’s grounds of appeal are completely misplaced. 

17.  The Judge struck out the applicant’s application on the ground that it was an abuse of process.  This is because the application was a repeated application made after the earlier application against the same decision of the Board and on almost identical grounds was dismissed by Deputy High Court Judge Woodcock.  The applicant’s grounds of appeal and arguments in this appeal bear no relevance to the Judge’s reasons for his decision.  The Judge’s decision did not deal with state acquiescence or involvement.  Nor were country condition, high standards of fairness, the duty to act fairly, and the approach and merits of the Board’s decision engaged.  There is also no basis to complain that the Judge did not give detailed reasons for his decision.

18.  We are in agreement with the Judge that it was an abuse of the court’s process to make a second application for leave to apply for judicial review in respect of the same decision and on almost identical grounds.  The Judge did not err in striking out and dismissing the applicant’s application.      

19.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.