CACV 145/2020
[2020] HKCA 1026
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 145 OF 2020
(ON APPEAL FROM HCAL 578/2018)
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| RE: | NOUMAN MUHAMMAD | Applicant |
|
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Before: Hon Lam VP and G Lam J in Court
Date of Hearing: 9 December 2020
Date of Judgment: 15 December 2020
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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. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 25 May 2020 in HCAL 578/2018. By that decision, the Judge struck out and dismissed the applicant’s 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 23 June 2017.
Background
2. The applicant is a Pakistani national. He entered Hong Kong illegally on 3 January 2014 and was arrested by police on the same day. He was referred to the Immigration Department for investigation on 4 January 2014, and lodged his non-refoulement claim on 5 January 2014.
3. The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by supporters of the Pakistan Muslim League (N) because he is a member of a rival political party.
4. By Notice of Decision dated 29 February 2016 and 6 February 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. An oral hearing was held on 6 March 2017. The Board dismissed the applicant’s appeal on 23 June 2017.
First application for leave for judicial review: HCAL 412/2017
6. On 17 July 2017 the applicant first sought leave from the court to apply for judicial review against the Board’s decision. Following a hearing on 12 December 2017 at which the applicant attended in person, Deputy High Court Judge (“DHCJ”) Woodcock refused leave on 29 March 2018 ([2018] HKCFI 678, HCAL 412/2017). DHCJ Woodcock found that none of the applicant’s grounds were reasonably arguable, that there was no error of law or procedural unfairness by the Board, and that there was no realistic prospect of success in the intended judicial review.
7. The applicant did not appeal against the refusal of leave in HCAL 412/2017.
Second application for leave for judicial review: HCAL 578/2018
8. Instead, on 9 April 2018, the applicant sought leave a second time from the court in HCAL 578/2018 to apply for judicial review against the same Board’s decision. In his affirmation of 9 April 2018 in support of his Form 86, the applicant appended a copy of the court’s decision of 29 March 2018 in HCAL 412/2017, [2018] HKCFI 678.
9. The Judge held a hearing in HCAL 578/2018 on 20 September 2019 at which the applicant attended in person. The Judge struck out and dismissed the application for leave to apply for judicial review in HCAL 578/2018 on 25 May 2020. The Judge held that it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review of the same Board’s decision.
Appeal to this Court
10. On 1 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His grounds of appeal were that the gravity of his circumstances have not been weighed or realized by the Board and the Director in considering his non-refoulement claim.
11. On the same day, the Applicant agreed in writing that the appeal could be heard by 2 judges.
12. Pursuant to this Court’s directions of 23 October 2020, the applicant duly lodged his written submissions on 2 November 2020. Those submissions consist largely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.
13. At paragraph (5) of his submissions states that the Board acted in a procedurally unfair manner by not properly assessing the applicant’s credibility.
14. Nevertheless, in those submissions the applicant did not provide any details or particulars as to how or why the Board’s assessment of credibility was not proper, let alone any particulars in support of his other arguments.
15. Those submissions also did not identify any errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.
Discussion
16. It is an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect 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.
17. 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.
18. The existence of the first application was disclosed as an exhibit in the supporting affirmation of 9 April 2018 in the second application though no reference was made to it in the body of the affirmation. No explanation was given by the applicant as to why he did not appeal against the refusal in the first application.
19. The only basis on which his application was dismissed by the Judge was that it was an abuse of process in light of the outcome in the first application. The applicant has failed to identify, in either his grounds of appeal or his submissions, any basis for arguing that he should not be bound by the outcome in the first application.
20. We agree with the Judge that this second application is an abuse of process and his appeal is without merit.
21. For these reasons, we dismiss the appeal accordingly.
| (M H Lam) | (Godfrey Lam) |
| Vice President | Judge of the Court of
First Instance |
The applicant appearing in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] This refers to the 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).