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CACV 363/2019
[2019] HKCA 1322
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 363 OF 2019
(ON APPEAL FROM HCAL 71 OF 2018)
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Before: Hon Lam VP, Lisa Wong and ST Poon JJ in Court
Date of Hearing: 25 November 2019
Date of Judgment: 2 December 2019
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1.This is an appeal by the abovenamed applicant, Mr MIAH Mamun, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 26 July 2019 refusing him leave to commence judicial review proceedings. The intended judicial review proceedings sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 28 December 2016 (“Board’s Decision”). The Board’s Decision in turn dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his claim for non-refoulement protection (“Claim”). Such rejection by the Director was embodied in, and communicated to the applicant by, 2 notices of decision dated 30 January 2015 and 21 August 2017 (“1st Director’s Decision” and “2nd Director’s Decision” respectively and “Director’s Decisions” collectively).
The Claim, the Director’s Decisions, Appeal to the Board & the Board’s Decision
2.The applicant, a national of Bangladesh and a member of the Awami League (“AL”) now aged about 40, entered Hong Kong legally on 18 June 2006 as a visitor with permission to stay for 14 days. However, he did not depart upon the expiry of the permission to remain, but overstayed illegally since 3 July 2006. He was arrested by the Hong Kong police on 20 June 2008. On 26 June 2008, the applicant lodged a torture claim which, upon the commencement of the Unified Screening Mechanism on 3 March 2014, was treated and processed as a non-refoulement claim.
3.The bases of the Claim were fears of being harmed or even killed by members of the Bangladesh Nationalist Party (“BNP”) for refusing to join the party and attend its meetings and of being arrested by the Bangladeshi police for a false murder charge trumped up against him by a BNP member who had tried to invite the applicant to attend BNP meetings.
4.Given our conclusion that this appeal should be dismissed primarily on the ground that the proceedings below was per se an abuse of process, it is unnecessary, and we do not propose, to go into the circumstances under which such alleged fears of the applicant were said to arise. Such circumstances have in any event been set out in different degrees of detail in the 1st Director’s Decision (see [7] at pages 2 to 23), the Board’s Decision (see [7]-[15] at the 2nd to 4th pages) and [1]-[2] of the Form CALL-1 dated 26 July 2019[1] (“2nd JR Judgment”), all of which[2] we have considered with care.
5.Nor is it essential for us to set out the reasons why the Director rejected the Claim / the Board dismissed the applicant’s appeal from the Director’s Decisions save to summarise the following:
(1) The 1st Director’s Decision found the Claim to be unsubstantiated in respect of torture risk[3], persecution risk[4] or “BOR 3” risk[5].
(2) Upon the applicant’s appeal lodged on 11 February 2015, the Board conducted an oral rehearing of the Claim on 11 September 2015, at which the applicant[6] testified before, and answered questions by, the Board through a Bengali interpreter.
(3) By a decision given on 28 December 2016, the Board dismissed the applicant’s appeal on torture risk, persecution risk and “BOR 3” risk.
(4) The Claim essentially failed on torture risk, persecution risk and “BOR 3” risk on the facts and evidence at both tiers of the screening process. Both the Director and the Board concluded that there were no or no substantial grounds for believing that the applicant would be in danger of being harmed by BNP supporters or the Bangladeshi police if he should return to Bangladesh.
(5) In particular, the Board found the applicant’s credibility to have been undermined by his failure to provide any or any satisfactory explanation for his delay in raising the torture claim and the “numerous” and “fundamental” discrepancies between the respective accounts of events given by him to the Director and the Board. In short, the Board assessed the applicant’s evidence to be “unreliable, improbable and lacking in credibility”. See [26]-[35] of the Board’s Decision.
(6) The 2nd Director’s Decision, rendered after the Board’s Decision, rejected the Claim for failing to establish a “BOR 2” risk[7].
(7) The applicant did not appeal against the 2nd Director’s Decision, despite having been advised that he could do so within 14 days.
Repeated applications for leave for judicial review
6.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 65/2017 on 6 March 2017 (“1st JR Application”), the applicant first sought leave to apply for judicial review of the Board’s Decision.
7.Deputy High Court Judge Woodcock heard and dismissed the 1st JR Application on 19 October 2017 and 5 January 2018 respectively. The applicant’s proposed grounds for judicial review and the reasons for their rejection can be found in [15]-[21] of the Form CALL-1 dated 5 January 2018 (“1st JR Judgment”):
“15. I have considered the papers and grounds of this application. This application lists eight grounds of judicial review. Many involve the adjudicator’s failure concerning COI material and information. Those include grounds 1, 2 and 5. Ground 3 criticises the adjudicator’s failing to consider a consistent system of human rights violations and ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.
16. Firstly, particulars have not been given in relation to each of these grounds and complaints. Secondly, the adjudicator has made reference to COI material in this decision. He considered State protection but not whether or not there is a consistent system of human rights violations in Bangladesh. However, this is not relevant when the applicant cannot establish there is a real and personal risk to him if refouled. Consideration of this concept does not rise unless there is a substantial risk or a real personal chance he will be tortured or ill-treated if refouled. In this case, the adjudicator and make that finding.
17. Grounds 6, 7 and 8 also lack particulars, there was never any basis for the adjudicator to call for psychological and psychiatric evaluation. There were no complaints by the applicant or particulars given to the adjudicator recorded in the decision that the assigned duty lawyer failed him previously. This is particularly pertinent when the applicant was represented during the oral hearing by the duty lawyer who I assume, as is usually the case, was the same duty lawyer who represented him at his hearing before the Immigration officer. I see no complaints from that lawyer referring to himself. None of the above grounds have any merit.
18. At the hearing before me, the applicant explained that his complaint was nobody from the duty lawyer scheme went to Bangladesh to verify facts from this claim. He widened that to include nobody went to Bangladesh to check anything before his claim and appeal was dismissed. He added somebody could have gone to, for example, the hospital to check his claim was true. He also added during the hearing that delay was a factor I should consider relevant. He has been here a long time and if he had been told earlier that his claim would be unsuccessful he could have gone to another country to seek protection. This is a factor not relevant for the purposes of a judicial review.
19. There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle. He says he was ill-prepared and confused during the hearing. This is odd when he was legally represented. There is no record in the decision of any complaint raised before the adjudicator by the applicant’s legal representative. The applicant complains that despite answering all questions honestly he is aggravated his credibility was doubted. I am satisfied the adjudicator gave full reasons for his finding and his findings are reasonable.
20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.
21. In my judgment, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave for judicial review.”
8.Instead of appealing to the Court of Appeal against the 1st JR Judgment, by another Notice of Application for Leave to Apply for Judicial Review issued under HCAL 71/2018 on 15 January 2018 (“2nd JR Application”), the applicant re-applied for leave for judicial review of the Board’s Decision.
9.Again, given that this appeal is to be dismissed primarily for the abusive nature of the 2nd JR Application, it is unnecessary, and we do not propose, to go into the applicant’s proposed grounds for judicial review the second time around.
10.After a hearing in open court at which the applicant made oral submission, the Judge struck out and dismissed the 2nd JR Application for the reasons set out in [9]-[12] of the 2nd JR Judgment:
“9. On 5 January 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of his grounds reasonably arguable, that his intended application had no realistic prospect of success, and that there was no error of law or procedural unfairness in the Board’s decision.
10. The applicant did not appeal against Deputy Judge Woodcock’s decision, and instead he filed another Form 86 on 15 January 2018 in the proceedings now before me, for which he put forward exactly the same eight grounds for his second application.
11. At the hearing of his second application before me, he was unable to explain why he should be allowed to make another leave application for judicial review other than merely claiming that he was not satisfied with Deputy Judge Woodcock’s decision.
12. In the premises the principle of res judicata applies, and it is clearly an abuse of process for the applicant to try to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 65/2017, and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.”
Appeal to Court of Appeal and grounds of appeal
11.By a notice of appeal filed herein on 6 August 2019, the applicant appealed against the 2nd JR Judgment and stated his grounds of appeal as follows (sic):
“Unfortunately the Honourable Judge of the High Court dismissed my claim but total of his order I can not find any good reason to cancel my claim. He only about the error of law. Actualy I am not a lawyer. but I know it is my basical right to take help of a lawyer in Torture Claims Appeal Board and in the High Court no 1 lawyer help me. In the Appeal Board and in the High Court the Judge and the Adjudicator pay in opposition roll. If the Judge stay opposition how can he give nutral judgment
So I want to get good result and that is why I appeal to the higher court.”
12.On 10 October 2019, the applicant lodged the following written submission (sic):
“I am a boy from Bangladesh. My full name is Miah Mamun. My language is Bengali. I had political problem in my country. To save my life I came Hong Kong, I applied non refoulement claim but Adjudicator of Torture Claims Appeal Board and Director of Immigration cancel my claim, it is very unfortunate, so I apply for leave to apply for judicial review. But the Honourable Judge cancel my judicial review. The Honourable Judge did not consider my points, he only take points of Adjudicator and Director of Immigration.
Bangladesh is a paradise place of terror and most of the terror are supported by politician. Awami League is in power from 2008, so long time no other party never ruled Bangladesh. Now all terrorist came to the Awami League. Even my enemy who was big leader of BNP now work for Awami League. Now I am going to tell you 6.10.2019 date terrible story. Abrar Aftab a brilliant boy was killed in Boet. Those who killed Abrar they are worker of Awami League. Abrar is also a worker of Awami League total family of Abrar work for Awami League.
This is present situation of Bangladesh. But I complain to the Immigration Director to investigate my problem in Bangladesh, if you properly investigate in Bangladesh no body can’t cancel my claim.
The Honourable Judge would asked Immigration Director or Adjudicator about my case. He only ask me but never conceder my points. I wish I will get a good judgment from the Court of Appeal.”
13.The applicant appeared in person at the hearing of the appeal on 25 November 2019. He had nothing to add to his notice of appeal or written submission.
Discussion
14.This court has stated on multiple occasions that it is an abuse of process for an applicant to bring a second judicial review application in respect of the same decision of the Board after he failed to get leave in the first application. See Re Mamun Moihammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22].
15.The Judge noted in [11] of the 2nd JR Judgment that, at the hearing before him, the applicant was unable to explain why he was entitled to make the 2nd JR Application after the disposal of the 1st JR Application on the merit. The applicant’s dissatisfaction with the 1st JR Judgment, which was a given, could not be accepted as justifying the applicant making the same application twice and on exactly the same grounds.
16.Before us, neither the notice of appeal nor the written submission engaged the Judge’s reason for dismissing the 2nd JR Application by addressing or even acknowledging the fact that the applicant had made repeated applications for leave to apply for judicial review of the Board’s Decision.
17.The 2nd JR Application was rightly struck out and dismissed for being an abuse of process.
18.Further, given the time taken for the determination of the failed 1st JR Application, the 2nd JR Applicant was unsurprisingly outside the 3-month statutory limitation. As was held by the Court of Appeal in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29], where an application for leave for judicial review is outside the 3-month statutory time limit, the applicant must obtain an extension of time under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) before the application for leave can be entertained. Given that the 2nd JR Application was an abuse of process as a result of the determination of the 1st JR Application on the merits, there cannot be any good reason to extend time.
19.In any case, this appeal, even if entertained, has no merit on the grounds advanced by the applicant or otherwise.
20.Dealing first with the complaint of lack of, and the assertion of entitlement to, legal representation made in the notice of appeal:
(1) First, it did not in our view detract from or diminish the abusive nature of the 2nd JR Application. The same procedural law has to apply across the board to all litigants, whether represented or not. The courts could not otherwise have functioned properly.
(2) Second, it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178. In this case, the applicant did already have the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director. He has not pointed out in what ways he was prejudiced before the Board or the judges of the Court of First Instance due to his being unrepresented. And we can see none, particularly given the purely factual nature of the Claim.
21.As for the one-sentence criticism in the notice of appeal that the Board and the judges of the Court of First Instance had taken upon an opponent role thereby putting in question their neutrality:
(1) First, despite the serious nature of the charge, the applicant did not see fit to even attempt to provide any or any proper basis therefor.
(2) Second, the applicant made no such complaint regarding the Board in his proposed grounds for judicial review in either the 1st JR Application or the 2nd JR Application. As we have pointed out many times before, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time. See Re Md Iqbal [2019] HKCA 912 at [13(3)], Re Sudimah [2019] HKCA 1030 at [12(3)], and Re Marshall Bill O [2019] HKCA 1931 at [13(3)].
(3) Nor did the applicant make the same criticism of DHCJ Woodcock in the 2nd JR Application, especially when he was asked by the Judge to explain why he re-applied for leave for judicial review.
(4) While this complaint is for these reasons not worthy of any or any earnest consideration, we have out of abundance of caution nevertheless scrutinised the Board’s Decision as well as the 1st and 2nd JR Judgments with due care to satisfy ourselves that there was no error of law, procedural unfairness or irrationality by the Board that might ground the judicial review of the Board’s Decision and that neither of the first instance judges had erred in law, omitted to consider a relevant matter or been otherwise plainly wrong to justify the intervention of this court.
22.That leaves the applicant’s illustration of the current situation in Bangladesh in his written submission by referring to the alleged killing of a young man by members of the AL. We are puzzled by such submission, which appears to us to contradict the Claim and should for this reason be disallowed. As noted above, the applicant claimed to be an AL member. And the Claim was premised upon a fear of harm from BNP members/supporters.
Disposition
23.This appeal is bad on multiple bases and must be dismissed.
| (M H Lam) |
(Lisa Wong) |
(S T Poon) |
| Vice President of the Court of Appeal |
Judge of the
Court of First Instance |
Judge of the
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] Available online as [2019] HKCFI 1758.
[2] Neither of the Director’s Decisions nor the Board’s Decision was included in the Appeal Bundle. We have however retrieved the same from the lower court files.
[3] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[4] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[6] Who was represented by counsel assigned by the Duty Lawyer Service.
[7] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.
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