MOHAMMED EKBAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

MOHAMMED EKBAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

The second leave application was struck out and dismissed because it constituted an abuse of process and was barred by res judicata: the applicant had already sought and been refused leave in HCAL 450/2017, the Court of Appeal had dismissed his appeal and subsequent motion, there were no arguable grounds or realistic prospects of success, and the applicant failed to disclose prior proceedings thereby wasting judicial resources.

Citation
[2019] HKCFI 1874
Parties
Applicant: Mohammed Ekbal; Putative Respondent: Torture Claims Appeal Board / Non-Refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 July 2019
Case Number
HCAL38/2018
Procedural Posture
Application for Leave to Apply for Judicial Review / Second Leave Application Struck Out and Dismissed on Grounds of Res Judicata and Abuse of Process After Consideration of Documents With Applicant Absent
Outcome
Second application for leave to apply for judicial review struck out and dismissed.
Legal Topics
Non Refoulement, Torture Risk, Res Judicata, Abuse of Process, Procedural Fairness, Leave to Apply for Judicial Review
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Law Non Refoulement Torture Risk Res Judicata Abuse of Process +2 more

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Parties

Mohammed Ekbal

Applicant

Torture Claims Appeal Board / Non-Refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Second Leave Application Struck Out and Dismissed on Grounds of Res Judicata and Abuse of Process After Consideration of Documents With Applicant Absent

Legal Issues

  1. 1 Whether a second application for leave after a prior refusal and dismissal on appeal is barred by res judicata/abuse of process
  2. 2 Whether the Board unlawfully fettered its discretion
  3. 3 Whether the Board acted with procedural unfairness toward the applicant

Ratio Decidendi

The second leave application was struck out and dismissed because it constituted an abuse of process and was barred by res judicata: the applicant had already sought and been refused leave in HCAL 450/2017, the Court of Appeal had dismissed his appeal and subsequent motion, there were no arguable grounds or realistic prospects of success, and the applicant failed to disclose prior proceedings thereby wasting judicial resources.

Court Disposition

Second application for leave to apply for judicial review struck out and dismissed.

Orders

  • The second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board's decision dated 20 July 2017 is struck out and dismissed.