RE MAMUN MOHAMMAD TUHIN AL

CACV 72/2018

[2018] HKCA 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 72 OF 2018

(ON APPEAL FROM HCAL 1149/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  By our judgment dated 25 July 2018 (Reasons for Judgment of 27 July 2018, [2018] HKCA 442), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 22 March 2018 ([2018] HKCFI 537) refusing leave to the applicant to apply for judicial review.

2.  The applicant now seeks leave to appeal to the Court of Final Appeal.

3.  In his notice of motion filed on 30 July 2018, the applicant put forth the following grounds for seeking leave to appeal to the Court of Final Appeal:

“ - The claims that the judgment has made stated there is no substance in the grounds of the application is not true.

- On the strength of the grounds has not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle.

- Rest of the grounds I will submit as soon as possible.” (sic)

4.  The applicant also filed an affirmation (exhibiting a copy of the reasons for judgment dated 27 July 2018) in support of his application on 30 July 2018.  The affirmation had no substantive contents.   

5.  In his written submissions of 24 August 2018, the applicant set out the factual narrative of his case and submitted that high standards of fairness or minimum standards of procedural fairness were required in determining a non-refoulement claim.

6.  In the reasons for judgment dated 27 July 2018, this Court dismissed the applicant’s appeal on the sole ground that the duplicate applications made by the applicant for leave to apply for judicial review amounted to an abuse of process.  Clearly, none of the matters set out in either the notice of motion or the written submissions had any bearings on that issue.

7.  In the present application, the applicant did not pinpoint any error in the judgment.  We cannot find any reasonably arguable ground of appeal that justifies leave to appeal to the Court of Final Appeal.  

8.  The applicant failed to raise any question of great general or public importance for the Court of Final Appeal to determine.  There is no basis for us to grant leave on the “otherwise” limb.  Thus, the applicant failed to meet the statutory threshold under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) for leave to appeal to the Court of Final Appeal to be granted. 

9.  For these reasons, we dismiss the notice of motion dated 30 July 2018.

CACV 72/2018

[2018] HKCA 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 72OF 2018

(ON APPEAL FROM HCAL 1149/2017)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the judgment of Deputy High Court Judge Woodcock on 22 March 2018 refusing leave to the applicant to apply for judicial review. The applicant had previously applied for judicial review on the same matter in HCAL 217/2017 and leave was, on that occasion, refused on 24 November 2017.

2.  The applicant is a national of Bangladesh.  He was arrested by the police on 11 August 2013 for entering Hong Kong illegally. On 16 August 2013, he lodged a claim for non-refoulement protection.  According to the applicant, if he returns to Bangladesh he will be killed by members of the ruling political party, the Awami League due to his political affiliations.

3.  The Director decided against the claims on 11 April 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  On 18 April 2016, the applicant appealed to the Torture Claims Appeal Board. 

4.  In April 2017, the Director requested further information on BOR 2 risk from the applicant.  The applicant did not provide any additional fact before the extended deadline.  By a Further Decision of 24 April 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

5.  After a hearing held on 11 April 2017, the Board dismissed the appeals on all applicable grounds (including BOR2 risk) on 12 May 2017 (“Board Decision”).

6.  On 19 May 2017, the applicant sought leave to apply for judicial review of the Board’s Decision in HCAL 217/2017.  Deputy High Court Judge Woodcock refused leave on 24 November 2017.  There was no appeal against that decision. 

7.  On 28 December 2017, the applicant again sought leave to apply for judicial review in HCAL 1149/2017.  The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 28 December 2017 did not contain any ground for judicial review.

8.  In his affirmation dated 28 December 2017, the applicant provided 8 grounds for judicial review.  For the reasons stated below, there is no need to consider any of those grounds.

9.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [2] to [7] of the judgment of 22 March 2018:

“ 2. I refused leave of the applicant’s 1^st application on the basis that there was no realistic prospect of success. The adjudicator had made no error of law, there was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness and the substantive decision was not Wednesbury unreasonable.

3. The applicant then wrote to this court in December 2017, repeated the facts of his claim and asked this court to reconsider the decision. I replied and informed him that this court’s order had been perfected and the court no longer had jurisdiction to decide again or deal with his leave application any further.

4. Despite or rather in spite of my determination, the applicant has filed another, a second application (“the 2^nd application”) for leave to apply for judicial review of the same TCAB decision on 28 December 2017 and filed the same supporting affirmation with the same grounds. He has applied for legal aid again on 21 February 2018; I suspect he has not informed the legal aid that it is for the same application to judicial review the same decision which has already been refused once before.

5. In the 2^nd application he does not ask for an extension of time to file this application as it is of course late, it should be filed within three months of the date of the TCAB decision. He gives no reasons for any delay which is required as mentioned in the application form, the Form 86. He makes no mention of the delay in the supporting affirmation. It is as if he is hoping no one will notice it is a 2^nd application and he had his 1^st application refused.

6. Clearly the principle of res judicata applies in this case; once a matter is judicially decided it is finally decided. This doctrine bars re litigation of matters that have already been judged on its merits or its substance. This application has been decided by a court already, it is therefore finally resolved and cannot be determined again, unless on appeal. The applicant cannot be allowed to abuse the process in this manner because that is what it is, an abuse; the time has come to accept he has no further recourse in this court on this basis.

7. Although the applicant has requested an oral hearing in this 2^nd application, I take the view that this abuse of process means I can ignore that request and proceed to deal with this summarily and without a hearing. After all, I suspect the intention of the applicant in filing a 2^nd application is to buy time and if I take the time to fix an oral hearing which will require a certain amount of time to arrange in the court diary then that is playing into the applicant’s hand. Hence, my decision, despite the request, to deal with this expeditiously and on the papers. This application is accordingly dismissed.”

10.  In the notice of appeal of 26 March 2018 and the affirmation of the same date, the applicant argued that (1) the judge was wrong in holding that there was no state acquiescence and (2) the judge failed to provide detailed reason in support of her decision.

11.  In his skeleton submissions dated 28 June 2018, the applicant argued that (1) the Board failed to consider the relevant COI and that (2) the Board was under a duty to act fairly.

12.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

13.  The applicant commenced HCAL 1149/2017 about 1 month after the CALL-1 Form in HCAL 217/2017 was handed down.  This is a blatant attempt to re-litigate the same matter and an abuse of the Court’s process (see Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 at [2]).

14.  In our judgment, the judge had correctly concluded that the proceedings in HCAL 1149/2017 was a clear case of abuse of process.  She had identified the legal principles on res judicata and gave sufficient reasons in her judgment for holding that the applicant application in HCAL 1149/2017 was an abuse of process. Once she had concluded that the leave application should be dismissed for being an abuse of process, there was no need for the judge to go into any of the grounds for judicial review in the affirmation in support of the Judicial Review leave application.

15.  For these reasons, we dismiss the appeal accordingly. Should the applicant commence another new set of proceedings to challenge the same decision by way of judicial review, the Court will consider issuing a Restrictive Proceedings Order against him in accordance with the approach discussed in Secretary for Justice & Anr v Yuen Oi Yee & Ors [2006] 1 HKLRD 679 at [29] to [32].