Mohammad Mongal Mia v. Torture Claims Appeal Board

CACV 531/2019

[2020] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2019

(ON APPEAL FROM HCAL 983/2017)

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BETWEEN

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Before:  Hon Barma JA, Barnes J and Lisa Wong J in Court

Date of Hearing:  21 April 2020

Date of Handing Down Judgment:  7 May 2020

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J U D G M E N T

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Hon Barma JA (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 18 November 2019 striking out and dismissing his application for leave to apply for judicial review in HCAL 983/2017.

Background

2.The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 1 April 2013 and was arrested by the police on 12 April 2013.  He lodged a non-refoulement protection claim on 7 March 2014.  His claim to non-refoulement protection was based on alleged threats from members of an opposing political party.

3.By a Notice of Decision dated 14 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim (“the Director’s Decision”).  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

4.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“the Board”).  An oral hearing was held on 4 May 2017.  By a decision (“the Board’s Decision”) dated 17 May 2017, the Board dismissed the appeal (“Board’s Decision”).

HCAL 238/2017

5.On 25 May 2017, the applicant applied to the court in HCAL 238/2017 for leave to apply for judicial review.  The intended judicial review was against the Board’s Decision.  Deputy High Court Judge Woodcock dismissed the application on 4 August 2017. 

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

HCAL 983/2017

7.Instead, on 29 November 2017, the applicant made another application for leave to apply for judicial review in HCAL 983/2017.  This intended judicial review was also against the Board’s Decision.

8.In §11 of his affirmation dated 28 November 2017 filed in support of HCAL 983/2017, the applicant claimed that his previous application for judicial review was unsuccessful “due to lack of presentation”, and sought an extension of time to apply for judicial review.

9.The leave application in HCAL 983/2017 was heard by DHCJ Bruno Chan (“the Judge”).  The Judge noted the previous unsuccessful application in HCAL 283/2017 and held that the application in HCAL 983/2017 was an attempt to re-litigate the same matter.  He applied the principle of res judicata and ordered the application be struck out and dismissed on 18 November 2019.

The Appeal

10.On 21 November 2019, the applicant filed a notice of appeal against the Judge’s decision in HCAL 983/2017.  The stated grounds of appeal were that the Judge had erred in law in holding that there was no state acquiescence or involvement, and that the Judge failed to provide detailed reasons for his decision.  It was also contended that the Judge wrongly ignored the country of origin information.

11.In his affirmation dated 21 November 2019, the applicant reiterated the grounds of appeal in the notice of appeal.

12.On 22 November 2019, the Registrar of Civil Appeals directed that a hearing be fixed at which this court could consider whether or not to strike out the applicant’s notice of appeal on the grounds that it was an abuse of process, having regard to the decision of this court (differently constituted) in Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763, which appeared to suggest that an appeal against the striking out of a second judicial application for judicial review in respect of the same decision of the Board should be regarded as an abuse of process and struck out.  The Registrar also gave leave to the putative respondent and the putative interested party to file evidence in opposition to the appeal, and gave the applicant leave to file an affirmation in reply.

13.On 6 January 2020, Mr Wong Fu Keung of the Immigration Department filed an affirmation on behalf of the Director (the putative interested party), in which he gave an account of the procedural history leading up to the present appeal and exhibited the relevant documents.  The applicant did not file any evidence in reply.

14.On 16 March 2020, the applicant filed a skeleton submission citing a number of well-known authorities concerning the high standard of fairness called for, and submitting that:

(1)  the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and

(2)  the Board failed to act fairly.

15.On 8 April 2020, the Department of Justice on behalf of the Director filed a skeleton submission contending that the leave application in HCAL 983/2017 was a clear case of abuse of process as an attempt to relitigate the earlier failed application for leave to bring judicial review, and that the appeal should be dismissed for this reason.

16.We heard the applicant and the Director on 21 April 2020.  At the hearing, we indicated that having read the papers, the applicant’s submissions appeared to us to be directed more to substantive complaints regarding the processing of his non-refoulement claim and his application for judicial review, rather than to the question of whether his appeal should be struck out as an abuse of process. We indicated that, in these circumstances, we were minded to consider the question of whether the appeal should be struck out as an abuse of process, and, if we concluded that we should not do so, to go on to consider the appeal on its merits.  Both parties agreed to this course being taken.  We also asked the applicant whether he had anything he wished to add to his submissions, in response to which the applicant reiterated only that it was still not safe for him to return to his home country.

Discussion

17.We shall accordingly deal first with the question of whether or not the applicant’s appeal should be struck out and dismissed as an abuse of process, on the basis that it relates to a second attempt to seek leave to bring judicial review proceedings in respect of the same decision of the Board.

18.As to this, there can be no doubt that to seek to bring multiple judicial reviews in respect of the same decision of the Board is prima facie an abuse of process (see eg Re Mamun Mohammad Tuhin Al [2018] HKCA 442; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519; Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571; and Bepary Shahealom v Torture Claims Appeal Board (supra)).

19.However, we note that in two of those cases (Mamun Mohammad Tuhin Al and Sujan Gazi), the appeal in question was dismissed on its merits, rather than struck out as an abuse of process.  In Begum Khadija, the appeal was struck out, apparently because leave to appeal (which was required because the court below had refused to extend time for bringing the judicial review proceedings) had not been obtained (although it was also observed that the bringing of a second judicial review was an abuse of process).  In Bepary Shahealom the appeal was struck out as an abuse of process (although the court also went on to explain why the appeal had no underlying merits).

20.In Bepary Shahealom, the applicant had failed to disclose the earlier judicial review proceedings, and neither the court registry nor the judge realized that there had been an earlier unsuccessful attempt to obtain leave to judicially review the decision of the Board.  The earlier proceedings only came to light on the intervention of the Department of Justice when the matter was on appeal.  This may explain why the court in that case treated the appeal itself as an abuse of process.  In the present case, the earlier proceedings were disclosed to the court below (see paragraph 8 above), leading the Judge to strike out the application before him as an abuse of process because it was res judicata.

21.It seems to us that in principle, an appeal against a striking out of an application on this basis, at least where the earlier proceedings have been disclosed by the applicant, is not necessarily itself an abuse of process (whether or not it has any prospect of success is a different matter).  On balance, we do not think that it would be appropriate to simply strike out the appeal in this case.

22.However, when consideration is given to the appeal on its merits, it is immediately apparent that the applicant has entirely failed to identify in his grounds of appeal any basis for interfering with the decision of the Judge.  The only basis on which his application was dismissed was that it was an abuse of process, being res judicata. This basis for dismissal is simply not addressed in the notice of appeal, affirmation or skeleton submissions.  The applicant has thus not identified any ground on which this court should interfere with the judgment below, and his appeal is therefore wholly without merit, and must be dismissed.

23.Accordingly, we dismiss the appeal.  We shall, however, make no order as to costs.

The applicant acting in person

Ms Jenny Cheung, Acting Senior Government Counsel, of the Department of Justice, for the putative interested party

The putative respondent being excused