Begum Khadija v. Torture Claims Appeal Board

CACV 130/2018

[2018] HKCA 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 130 OF 2018

(ON APPEAL FROM HCAL 876/2017)

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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 given on 20 April 2018 refusing leave to the applicant to apply for judicial review on the ground of delay.

Background

2.The applicant is a national of Bangladesh.  She came to Hong Kong on 6 December 2013 to work as a domestic helper.  Her employment contract was prematurely terminated on 24 March 2014, but she did not leave Hong Kong on or before 7 April 2014 in accordance with her permission to remain granted to her by the Director of Immigration (“the Director”).  She was arrested by the police on 31 July 2014 and lodged her claim for non-refoulement protection on 5 August 2014.  Her claim was based on the fear that, if she returned to Bangladesh, she would be harmed or killed by three named members of the Awami League (“AL”) because she filed a case against them to the Bangladeshi police.

3.According to the applicant, she and her family were supporters of the Bangladesh Nationalist Party (“BNP”), a political rival of the AL.  The applicant claimed that both her father and her mother were attacked by the AL supporters.  In late 2012, her brother was murdered.  She reported the murder to the police.  She claimed that several AL supporters were later convicted of murder and sentenced to 7 months’ imprisonment.  After the murderers’ release, they started to look for the applicant and threatened to kill her. 

4.By a notice of decision dated 30 September 2015, the Director rejected the applicant’s claim.  The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].   

5.By a notice of further decision dated 31 October 2016, the Director also assessed the applicant’s BOR 2 risk[4], and determined the risk against her.

6.The applicant appealed against the Director’s decisions to the Torture Claims Appeal Board (“the Board”).  Oral hearings were held on 13 February 2017 and 17 February 2017. The Board found the applicant to be an unreliable witness.  The Board also found that the applicant’s account in relation to the alleged criminal proceedings against her brother’s murderers were confused and confusing.  The Board also found that internal relocation was a viable option for the applicant.  The appeal was dismissed on 15 March 2017.

HCAL 140/2017

7.On 18 April 2017, the applicant applied to the court in HCAL 140/2017 for leave to apply for judicial review.  The intended judicial review was against the decisions of the Director and the Board.  The form 86 contained no ground for seeking reliefs. 

8.Deputy High Court Judge Woodcock heard the application on 24 July 2017 and dismissed it on 28 July 2017. 

9.The applicant did not appeal against DHCJ Woodcock’s decision.

HCAL 876/2017

10.More than 3 months after the dismissal of the applicant’s leave application in HCAL 140/2017, the applicant made another application for leave to apply for judicial review on 13 November 2017.  The intended judicial review was against the Board’s decision which was mistakenly stated to be a decision dated 3 November 2017.  Her affirmation also referred wrongly to a decision by another adjudicator not related to her case.  She did not provide any copy of the Board’s decision in her materials presented in HCAL 876/2017.

11.In the form 86 and her affirmation dated 13 November 2017, the applicant did not allude to the earlier decision given by DHCJ Woodcock in HCAL 140/2017. 

12.Because of the such wrong references, the Registry did not detect that she had previously made a similar application in HCAL 140/2017.

13.In accordance with usual practice, as the applicant did not include the Board’s decision in her materials submitted to the court, the clerk of Deputy High Court Judge Bruno Chan obtained the same from the secretariat of the Board.  Hence, the judge had the Board’s decision of 15 March 2017 before him when he processed HCAL 876/2017.  But he was not aware of the previous application in HCAL 140/2017.

14.This leave application was heard before Deputy High Court Judge Bruno Chan on 29 March 2018; and the application was dismissed on 20 April 2018.  DHCJ Bruno Chan noted that there was a 5-month delay in making the application.  She explained orally to the court at the hearing on 29 March 2018 before DHCJ Bruno Chan that she had not been able to find someone to help her with the application until November 2017.  No further details were given by the applicant.  

15.The applicant did not inform DHCJ Bruno Chan of her previous unsuccessful attempt in HCAL 140/2017. After considering the relevant legal principles, DHCJ Bruno Chan gave the following reasons in paragraphs 19-20 of the CALL-1 form in dismissing her application for leave to apply for judicial review:

“ 19. As already noted above the delay of five months in the present case cannot be said to be insignificant, for which the applicant has not provided any good reason but rather just an excuse, and more importantly none of her proposed grounds for her intended challenge shows any merits at all, as in the absence of any particulars or specifics they are in my judgment merely vague empty statements without showing where and how the Board got it wrong or irrational or unfair in the process of arriving at its decision. It is simply not sufficient, for instance, for the applicant to complain of the adjudicator being selective or relied on outdated COI without stating how he was so or what those COI were, or in what way was the decision irrational or unfair based on the facts before the Board, while the complaint about no psychological or psychiatric reports being called for during the process is entirely without any basis.

20. In the premises and for these reasons, I am not satisfied that the applicant has demonstrated any good reason for her undue delay in bringing her leave application for judicial review, nor are there any merits of her substantive application which may justify the court granting her indulgence in the form of extension of time.  Her leave application is accordingly refused.”

The Appeal

16.On 2 May 2018, the applicant filed a notice of appeal.  Although the notice of appeal did not contain any grounds, the applicant referred to her supporting affirmation dated 2 May 2018 for the grounds of appeal.  In her affirmation, the applicant deposed that:

(a)   DHCJ Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement; and

(b)   DHCJ Bruno Chan failed to provide detailed reason in support of [his] decision.

17.On 15 May 2018, the Department of Justice, acting on behalf of the Director, filed a respondent notice.  The Director contended that the decision of DHCJ Bruno Chan dated 20 April 2018 should be affirmed and the applicant’s application for leave to apply for judicial review should be dismissed additionally on the ground of res judicata and/or abuse of process by virtue of the rejection of similar application by the applicant in HCAL 140/2017.

18.When this appeal is listed for hearing, Lam VP gave directions that the court files of HCAL 140/2017 should be placed before the court and treated as evidence in the appeal.  Parties were also directed to lodge skeleton submissions.  The applicant was further directed to deal with the allegation in the respondent’s notice in her skeleton submissions.

19.Notwithstanding the directions of the court, the applicant did not lodge any skeleton submissions.

20.The Department of Justice, acting for the Director, lodged skeleton submissions on 13 August 2018.  It was submitted that this appeal should be struck out and dismissed for the following reasons:

(a)   The applicant failed to obtain leave to appeal under section 14AA of the High Court Ordinance (Cap 4) before bring this appeal;

(b)   It is an abuse of process for the applicant to re-litigate and challenge the decision of the Board on similar grounds, which had already been disposed of by the court in HCAL 140/2017; and

(c)   Without prejudice to the above, leave to appeal should not be granted because the applicant gave no explanation for the delay and the intended appeal has no reasonable prospect of success.

21.We heard the appeal on 28 August 2018.

Discussion

22.In our judgment, we only need to focus on one ground: it is clearly an abuse of process for the applicant to bring a second judicial review in respect of the same decision of the Board after she failed to get leave from Deputy High Court Judge Woodcock.

23.It is also a breach of duty of full and frank disclosure on the part of the applicant in concealing from Deputy High Court Judge Bruno Chan in her ex parte application that she had previously made an application for judicial review and failed to obtain leave. Such breach of duty is also a serious abuse of process.

24.Had she told Deputy High Court Judge Bruno Chan about the previous unsuccessful application in HCAL 140/2017, her application in HCAL 876/2017 would have been struck out.

25.Though the applicant acted in person, her withholding of information from the court is still inexcusable as the judge had asked her for explanation of the delay at the oral hearing.

26.It is not clear if the applicant deliberately misquoted the date and the particulars of the relevant Board’s decision in her Form 86 and affirmation filed in HCAL 876/2017.  Such misinformation had misled the Registry so that the judge was not informed about HCAL 140/2017.

27.We would give the applicant the benefit of doubt on this occasion.  But we must state that it is a serious matter to give misleading information and withholding such highly relevant information in court documents.  As this case has illustrated, much judicial and public resources were wasted in processing HCAL 876/2017.

28.The Director was also correct in pointing out that the applicant cannot appeal against the refusal to extend time without leave, see MI v Permanent Secretary for Security [2018] HKCA 419.  Leave has not been granted and the present appeal should be struck out.

29.For these reasons, we strike out and dismiss the appeal.

The applicant acting in person

Ms Patricia Lam, government counsel of the Department of Justice, for the putative interested party