Nupe Arachchige Niroshana Daminda Alias Mohamed Naleem Mohamed v. Torture Claims Appeal Board

CACV 551/2019

[2020] HKCA 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 551 OF 2019

(ON APPEAL FROM HCAL 441/2018)

_______________________________

_______________________________

Before:  Hon Lam VP and Zervos JA in Court

Date of Judgment:  21 August 2020

________________________

JUDGMENT

________________________

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 (“the Judge”) on 22 November 2019 in HCAL 441/2018 to strike out and dismiss his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 March 2017.

Background

2.The applicant is a Sri Lankan national.  He last arrived in Hong Kong on 29 April 2006 and was permitted to stay as a visitor until 13 May 2006.  He overstayed and was arrested by police in September 2006.  The applicant made a torture claim on 23 August 2009. 

3.The applicant’s claim was based on the fear that, if he returned to Sri Lanka, he would be harmed or even killed by the Sri Lanka Freedom Party or its successor the People’s Alliance Party, or by his former girlfriend’s family who objected to their relationship. 

4.By notices of decision dated 26 June 2015 and 13 June 2017, the Director of Immigration (“the Director”) assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4]. 

5.The applicant appealed to the Board against the Director’s decision of 26 June 2015.  An oral hearing was held on 10 May 2016. The Board dismissed the applicant’s appeal on 29 March 2017.  The applicant sought leave to judicially review this decision of the Board.

6.Subsequently, the applicant appealed to the Board against the Director’s decision of 13 June 2017.  An oral hearing was held on 6 December 2018, and the Board dismissed the appeal on 20 March 2019. 

7.The Board’s decision of 20 March 2019 is not part of the judicial review in HCAL 441/2018.

First application for leave for judicial review: HCAL 360/2017

8.On 5 July 2017 the applicant first sought leave from the court to apply for judicial review of the Board’s decision of 29 March 2017.  Following a hearing on 24 November 2017 at which the applicant attended in person, on 9 March 2018 Deputy High Court Judge Woodcock (HCAL 360/2017, [2018] HKCFI 449) refused leave upon finding that the Board’s decision was without fault, that there was no error of law or procedural unfairness by the Board, and that there was no prospect of success in the intended judicial review. 

9.The applicant did not appeal against the refusal of leave in HCAL 360/2017.

Second application for leave for judicial review: HCAL 441/2018

10.Instead, on 19 March 2018, the applicant sought leave anew from the court in HCAL 441/2018 to apply for judicial review of the Board’s decision of 29 March 2017. 

11.The Judge held a hearing on 13 August 2019 at which the applicant attended in person.  On 22 November 2019, the Judge struck out and dismissed the application for leave to apply for judicial review in HCAL 441/2018, [2019] HKCFI 2418.  The Judge considered that the grounds for judicial review are all broad and vague assertions without particulars that are not reasonably arguable, and should have been raised in the first application for judicial review. 

12.The Judge further considered that the principle of res judicata applied and that it is an abuse of process for the applicant to re-litigate his case by bringing a second judicial review of the same Board decision.  It was also held to be abuse when the applicant failed to inform the court registry of his failure in HCAL 360/2017 when he filed his second application.

Appeal to this Court

13.On 2 December 2019, the applicant filed his Notice of Appeal against the Judge’s decision.  He referred to the present situation in Sri Lanka as his ground of appeal.  He also gave written consent for the appeal to be heard by two judges.

14.On 3 December 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 ground that it is an abuse of process. 

15.The case was originally listed for hearing on 18 August 2020.

16.The Court directed on 15 June 2020 that the applicant must lodge his written submissions on appeal by 13 July 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged. 

17.The applicant failed to lodge any submissions as directed.  Thus, this appeal is processed on paper without a hearing.

Discussion

18.In Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380 it was held that it is an abuse of process for an applicant to file a second application for leave for judicial review in respect of the same Board decision without disclosing in the Form 86 or affirmation in support, or informing the High Court Registry, that there was a previous unsuccessful application for leave for judicial review of the same decision.  It was further held that it would be appropriate to strike out the appeal as an abuse of process in such circumstances.

19.In the present case, the applicant filed two applications for leave for judicial review of the same decision and the second application was struck out and dismissed by the Judge.  The existence of the first application was not mentioned in the Form 86 or affirmation in support filed in HCAL 441/2018.

20.Like the applicant in Khan Kamran, the applicant had acted in breach of the duty of full and frank disclosure in making the second application which was made ex parte.

21.Further, it is an abuse of process for the applicant to re-litigate his case by bringing a second judicial review of the same Board decision, see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at §16; Re Mamun Mohammad 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.

22.Despite the Judge’s reason for refusing leave in the second application, the applicant had not provided any explanation for doing so in his documents lodged in this appeal.

23.As he had no arguable basis for making a second attempt in judicial review against the same decision, the appeal is hopeless. In the circumstances, the Notice of Appeal should be struck out.

24.In any event, even if the appeal is not struck out, it must be dismissed on the basis that the appeal is wholly without merit as the only ground for the Judge to strike out the second leave application is res judicata and the applicant has entirely failed to identify any ground on which this Court should interfere with the judgment below.

25.For these reasons, we strike out the Notice of Appeal and dismiss the appeal.

The applicant acting in person