BEGUM JAHANARA v. IAN CANDY, ESQ, ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 3/2020

[2021] HKCA 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 3 OF 2020

(ON APPEAL FROM HCAL 428/2018)

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____________________

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JUDGMENT

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

1.  On 7 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 6 October 2020.  In that judgment Lam VP and Cheung JA struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019 striking out and dismissing her application for leave to apply for judicial review.   

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

3.  Pursuant to Section 24(2) of the Ordinance an appellant has 28 days from the date of the judgment to seek leave to appeal to the CFA.  In the present case, the time for the Applicant to seek leave to appeal against this Court’s judgment of 6 October 2020, expired on 3 November 2020.

4.  As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time: see: Section 24(5) of the Ordinance; see also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd, CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po, CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group, CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported), CACV 191/2013, 29 January 2015.

5.  In the present case, the Applicant’s Notice of Motion was late by 34 days.  In one of her two supporting affirmations of 7 December 2020, the Applicant explained that due to the current COVID 19 pandemic, it was difficult for her to get help from anyone.  She further explained that due to her language problem, it took days for her to find help. Though the delay in filing the Notice of Motion is significant, the Applicant’s explanation for the delay seems plausible in the circumstances.  Thus we have proceeded to decide her application on its merits.

6.  In her Notice of Motion for leave to appeal to the CFA, the Applicant stated that it is not true that there is no substance to her application.  She also stated that she had not previously complained about the duty lawyer’s performance due to fear that the lawyer would be “picked out for misappropriating” by the Torture Claims Appeal Board.  Further, the Applicant stated that she did not have enough time to address the hearing bundle. 

7.  In her other supporting affirmation of 7 December 2020, the Applicant deposed that the grounds of her application are that the court was wrong in law in holding that there was no state acquiescence and that the court failed to find out the clear details of the current situation in Bangladesh.

8.  Notwithstanding the acknowledgment by the Applicant on 7 December 2020 of the requirement under Practice Direction 2.1 and the direction of the Registrar of Civil Appeals of 8 December 2020, the Applicant has not lodged any written submissions in support of this application. 

9.  In the judgment of 6 October 2020, this Court struck out and dismissed the Applicant’s appeal for abuse of process due to re-litigation.  As such, the grounds for leave to appeal raised in her supporting affirmation clearly bears no relationship with the reasoning in that judgment.

10.  The Applicant has not raised any reasonably arguable ground of appeal on the merit of her claim, or any discernible or arguable ground for disturbing our judgment.  

11.  In any event, in the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

12.  For these reasons, we refuse to extend the time for the Applicant to apply for leave to appeal.  The Applicant’s Notice of Motion is dismissed accordingly.

CACV 3/2020

[2020] HKCA 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 3 OF 2020

(ON APPEAL FROM HCAL 428/2018)

____________________

__________________________

________________________

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 23 December 2019 in HCAL 428/2018.  By that decision, the Judge struck out and dismissed her 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 24 August 2017. 

Background

2.  The applicant is a Bangladeshi national.  She arrived in Hong Kong on 4 October 2013 with permission to work as a foreign domestic helper until the expiration of her contract on 4 October 2015 or 2 weeks after termination of her employment, whichever was sooner.  Her contract of employment was prematurely terminated on 27 December 2013, but she did not depart Hong Kong and has overstayed since 11 January 2014.  The applicant was arrested by police on 12 August 2014, and raised a non-refoulement claim on 20 September 2014.

3.  The applicant’s claim was based on the fear that, if she returned to Bangladesh, she would be harmed or even killed by her (step-) brothers-in-law who had allegedly murdered her husband and sons and allegedly violently assaulted her. 

4.  By notices of decision dated 24 July 2015 and 9 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.  An oral hearing was held on 28 June 2016 and on 26 July 2016.  The Board dismissed the applicant’s appeal on 24 August 2017.

First application for leave for judicial review: HCAL 621/2017

6.  On 14 September 2017 the applicant sought leave from the court to apply for judicial review against the Board’s decision. Following a hearing on 2 February 2018 at which the applicant attended in person, Campbell-Moffat J refused leave on 2 March 2018 ([2018] HKCFI 420). Campbell-Moffat J 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 621/2017.

Second application for leave for judicial review: HCAL 428/2018

8.  Instead, on 16 March 2018, the applicant made a second application in HCAL 428/2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court or the registry of her failed attempt in HCAL 621/2017.

9.  Following a hearing 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 428/2018 on 23 December 2019.  The Judge held that that it was an abuse of process for the applicant to re-litigate her case by bringing a second judicial review in respect of the same Board decision.

Appeal to this Court

10.  On 3 January 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that the Judge was wrong in law in holding that there was no state acquiescence or involvement, that the Judge failed to provide detailed reasons and that the Judge ignored country of origin information.

11.  Those grounds do not address the reasons given by the Judge for striking out and dismissing her application.

12.  On the same day, the Applicant agreed in writing that the appeal could be heard by 2 judges.

13.  Pursuant to the directions of the Registrar of Civil Appeals of 7 January 2020, the Director filed an affirmation of an immigration officer giving an account of the procedural history leading up to the present appeal.  The applicant did not file any evidence in reply.

Discussion

14.  In Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal held that it is an abuse of process for an applicant to file a second application seeking judicial review in respect of the same Board decision and it was a breach of the duty of full and frank disclosure when such application was made without stating that there had been a previous unsuccessful application for leave for judicial review of the same decision.  Such application is liable to be struck out.   It was further held that it would be appropriate to strike out an appeal against such decision as an abuse of process in such circumstances.

15.  In the present case, the applicant filed two applications for leave for judicial review in respect of the same Board decision.  The Judge struck out and dismissed the second application.  The Applicant did not refer to the first application in the Form 86 or affirmation in support for the second application.  Like the applicant in Khan Kamran, the applicant had acted in breach of her duty of full and frank disclosure.

16.  It is well settled that it is an abuse of process for the applicant to re-litigate her 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.  Despite directions from the Registrar of Civil Appeals, the applicant had not provided any explanation for proceeding by way of a second judicial review. 

18.  In the circumstances, we hold that the applicant has no arguable basis to support a second attempt in judicial review against the same decision and it is clearly an abuse of process. 

19.  The Notice of Appeal should be struck out and dismissed.  We order accordingly.