AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

The second application for leave was struck out and dismissed because it sought to re-litigate the same Board decision after a prior leave refusal and a refused out-of-time appeal, constituting abuse of process/res judicata, and because no arguable error of law or procedural unfairness was shown—the Director and Board lawfully and reasonably rejected the claimant's non-refoulement claims based on credibility findings, availability of state protection and feasible internal relocation supported by COI.

Citation
[2021] HKCFI 1590
Parties
Applicant: Akbar Md Faishal; Putative Respondent: Torture Claims Appeal Board; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 June 2021
Case Number
HCAL376/2018
Procedural Posture
Application for Leave to Apply for Judicial Review (non Refoulement/torture/refugee) / Leave Application Struck Out and Dismissed
Outcome
Application for leave to apply for judicial review struck out and dismissed.
Legal Topics
Non Refoulement, Torture Risk (immigration Ordinance Part Viic), Article 3 HKBOR (bor 3), Article 2 HKBOR (bor 2), Refugee Persecution (article 33 1951 Convention), Leave to Apply for Judicial Review, Res Judicata, Abuse of Process, Credibility Assessment, Internal Relocation
Source Language
EN
Constitutional Law Administrative Law Immigration Law Judicial Review Human Rights Law Non Refoulement Torture Risk (immigration Ordinance Part Viic) Article 3 HKBOR (bor 3) +7 more

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Parties

Akbar Md Faishal

Applicant

Torture Claims Appeal Board

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review (non Refoulement/torture/refugee) / Leave Application Struck Out and Dismissed

Legal Issues

  1. 1 Whether leave to apply for judicial review should be granted
  2. 2 Whether the second leave application is barred by res judicata or is an abuse of process
  3. 3 Whether the Director and the Board committed error of law or procedural unfairness in rejecting non-refoulement claims

Ratio Decidendi

The second application for leave was struck out and dismissed because it sought to re-litigate the same Board decision after a prior leave refusal and a refused out-of-time appeal, constituting abuse of process/res judicata, and because no arguable error of law or procedural unfairness was shown—the Director and Board lawfully and reasonably rejected the claimant's non-refoulement claims based on credibility findings, availability of state protection and feasible internal relocation supported by COI.

Court Disposition

Application for leave to apply for judicial review struck out and dismissed.

Orders

  • The application for leave to apply for judicial review is struck out and dismissed.