Lama Pasang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1105/2017

[2018] HKCFI 757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1105 OF 2017

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REASONS FOR JUDGMENT

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1.The applicant is a Nepalese national who entered Hong Kong on 6 July 2013 but overstayed and was arrested on 16 July 2013. He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 10 July 2015 he lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 January 2017. The TCAB determined it without conducting an oral hearing.

2.The applicant filed his first application for leave to apply for judicial review of that TCAB decision on 4 July 2017 (“1^st application”).  He requested a hearing date which was set down 23 November 2017 but the applicant was absent.  A notice of hearing dated 14 September 2017 was posted to the applicant’s address as supplied by him in his application.  This court refused leave to apply for judicial review of that decision on 9 March 2018, see HCAL 355/2017.  A copy of the order and decision was posted to the applicant’s same address 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 19 December 2017 (“2^nd application”).  The applicant filed this application before he received the result of the 1^st application which was reserved after the hearing date.  For this application, the applicant again asked for an oral hearing date and I set down a hearing date of 26 March 2018 but the applicant was once more 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 was this applicant’s application, he 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 ofres 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.

THE ISSUES

6.Several issues arise as a result of the 2^nd application.  Firstly, like his1^st application, his2^nd application is also 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.  This applicant makes no mention of delay; he does not acknowledge his delay nor does he give an explanation as required.  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.  To seek it again, the exact same action with a new action is prohibited.  This applicant makes no reference at all in his affirmation to his 1^st application.  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 the applicant’s claim was that if he returned Nepal he would be harmed or killed by a Maoist affiliate or his associates because he had an affair with his wife.  The applicant was born in 1989 and in 2009 had a relationship with a slightly older woman.  He did not know she was married.  When he found out, he broke off the relationship.  They remained friends and in contact.  However, her husband found out and personally attacked the applicant once and then on the second occasion.  He was not seriously injured.  The husband then sent some bullies after the applicant but they did not find him.

8.He later found out the husband had Communist Party connections.  Thereafter, he paid another man called Pasang in the applicant’s village to do some unspecified harm to the applicant but the applicant found out and Pasang promised he would not go through with the plan. Nothing significant happened to the applicant.  The Director and the adjudicator of the TCAB set out the evidence and claim in full in his decision therefore I do not intend to repeat it here.

9.The trouble with the husband happened in Kathmandu in 2010.  The trouble with Pasang in the applicant’s village happened in 2011 and nothing of significance has happened since December 2011.  Pasang confessed to the applicant in front of the police that he took the husband’s money but promised to do nothing and did do nothing.  On the applicant’s own facts, the applicant did not suffer any harm after this in his own village or in Kathmandu since 2011 but he decided to leave Nepal in July 2013.

THE TCAB DECISION

10.The adjudicator treated the appeal as a rehearing but was of the opinion that an oral hearing was not necessary.  It is not an automatic right.  He reminded himself that a high standard of fairness was required in dealing with torture claims and was guided by the principles set out by Cheung CJHC in ST v Betty Kwan & Ors CACV 115/2013 at paragraphs 20-54.

11.I set out in detail in HCAL 355/2017 why the adjudicator came to that conclusion; he found there to be no point of fact or question of law that needed to be addressed.  There was no question of credibility to be considered.  There was no need for further questions to be addressed with the applicant.  He considered the fact that the applicant was previously represented by the duty lawyer scheme before the Director.  I found his reasons for not conducting an oral hearing adhered to a high standard of fairness.

12.The adjudicator correctly set out the law and key legal principles for the applicable grounds.  He applied the applicant’s facts and evidence to the grounds and the definition of torture, CIDTP and persecution. 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

13.I refused to extend time to file the 1^st application.  There was a delay of almost three months, there was no proper explanation for the delay and no good reason for extending time.  There was no merit in the substantive application nor were there any questions of general public importance.  Ultimately, delay alone was enough to dispose of the 1^st application.

14.Nevertheless, I did go on to consider the merits of the applicant’s grounds.  I considered with rigourous examination and anxious scrutiny the papers and grounds of the 1^st application. I found the adjudicator’s decision to conduct a paper review to be without fault.  He analysed the material, claims and evidence with care.  I found no merits in any of the applicant’s grounds.  I found no errors of law, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.  Even if my decision to refuse an extension of time to file that application was wrong, the applicant’s 1^st application was not reasonably arguable and had no realistic prospect of success.

THE 2^ND APPLICATION – A REPEAT OF THE SAME GROUND AND AN ADDITIONAL GROUND

15.In the affirmation of this 2^nd application there is a repeat of the same ground that the adjudicator failed to maintain a high standard of fairness by not conducting an oral appeal hearing.  It appears there is a separate and 2^nd 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

16.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.

17.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.

18.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)

19.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.

20.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.”

21.Lord Sumption in Virgin Atlantic v Zodiac [2014] 1 AC 160 describes cause of action estoppel in 2 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.”

22.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 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

23.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.

24.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.

25.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 decipher.  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”.

26.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.

27.There is no evidence from the applicant why he did not include this ground 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 why he decided to file a 2^nd application at great cost to him when he could have written to the court to ask the court to consider any grounds he had omitted from his 1^st application or ask for leave to file a further affirmation.

28.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 a ground that, irrespective of whether it had merit, was 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 bought finality to the matter.

THE APPLICANT’S INTENTION BEHIND THE 2^ND APPLICATION

29.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 clearly unmeritorious grounds for such an application 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.

30.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 detecting and dealing with these duplicate applications.

RESTRICTED PROCEEDINGS ORDER

31.There is nothing stopping this applicant from filing a 3^rd and then a 4^th application of exactly the same nature after, or even before 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.

32.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.

33.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 the court. He must first write to this court or another designated judge for that leave.  This will prevent the abuse of process prevailing.

CONCLUSION

34.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 wider res judicata principle of Henderson v Henderson applies.

35.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.

The Applicant was not represented and did not appear