Karki Sajani v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 283/2018

[2019] HKCFI 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 283 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 5 May 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 32-year-old national of Nepal who entered Hong Kong illegally on 22 October 2009 and was arrested by police on the following day, 23 October 2009. After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by the Communist Party (“the Maoists”) for refusing to join their party.  She was subsequently released on recognizance pending the determination of her claim.

2.By a Notice of Decision dated 23 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3.The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 26 January 2016 with legal representation before the Board during which she gave evidence and answered questions put to her by the Board and with submissions made on her behalf by her counsel.  On 5 May 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision. 

4.By a Notice of Further Decision dated 17 May 2017 the Director again rejected the applicant’s claim upon receiving and considering additional submissions from her which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

5.On 2 August 2017 the applicant filed her Form 86 under HCAL 476 of 2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator acted in a procedural unfair manner in dealing with the applicant’s appeal;

(3)  procedural unfairness in that the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  procedural unfairness in that the hearing bundle was given to the applicant just six days before the appeal hearing with the majority of the documents in English thus giving her insufficient time to prepare for her appeal in view of her limited skills in English and that she could not afford to get help from an interpreter.

6.The applicant failed to attend the oral hearing of her leave application without any explanation, and on 24 May 2018 her leave application was refused by Deputy High Court Judge Woodcock upon finding none of her grounds reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in her intended application.

7.By a summons dated 4 July 2018 the applicant applied for an extension of time to appeal against that decision, and on 5 October 2018 her summons was dismissed by the Court of Appeal in CAMP 97/2018 upon finding no merits or prospect of success in her intended appeal which was considered as hopeless.

8.Meanwhile on 22 February 2018 the applicant filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and put forward similar grounds essentially of procedural unfairness and failure to apply high standards of fairness in the Board’s decision for her intended challenge, all of which had in fact in her previous proceedings already been found by the courts as without basis or merits or not reasonably arguable for her intended challenge.

9.Clearly the principle of res judicata applies, and 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 in HCAL 476/2017 and that her subsequent application for leave to appeal was refused by the Court of Appeal as hopeless, and also for failing to disclose to 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.   

10.In the premises and accordingly this second leave application for judicial review of the Board’s decision by the applicant is hereby struck out and dismissed.

Dated the 26^th day of July 2019.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1