SHEIKH AL ISLAM v. WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

SHEIKH AL ISLAM v. WILLIAM LAM, ESQ., TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

The summons to re-open a previously dismissed leave application was dismissed because the Court was functus officio and the attempt to re-litigate the same Board decision constituted an abuse of process/res judicata; additionally the second application lacked reasonably arguable grounds as already determined in the prior refusal of leave.

Citation
[2019] HKCFI 2736
Parties
Applicant: Sheikh Al Islam; Putative Respondent: William Lam, ESQ., Torture Claims Appeal Board; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 November 2019
Case Number
HCAL430/2018
Procedural Posture
Judicial Review (leave to Apply) / Leave Application Previously Refused; Summons to Re Open Dismissed
Outcome
Summons dismissed.
Legal Topics
Non Refoulement, Torture and Cruel, Inhuman or Degrading Treatment, HKBOR Article 3, HKBOR Article 2 (right to Life), Refugee Convention Article 33 (non Refoulement), Abuse of Process, Res Judicata, Leave to Apply for Judicial Review, State Protection, Internal Relocation, Procedural Fairness, Standard of Proof
Source Language
EN
Constitutional Law Administrative Law Immigration Law Public International Law Non Refoulement Torture and Cruel, Inhuman or Degrading Treatment HKBOR Article 3 HKBOR Article 2 (right to Life) +8 more

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Parties

Sheikh Al Islam

Applicant

William Lam, ESQ., Torture Claims Appeal Board

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Judicial Review (leave to Apply) / Leave Application Previously Refused; Summons to Re Open Dismissed

Legal Issues

  1. 1 Whether the applicant's second leave application was reasonably arguable
  2. 2 Whether the Court has power to re-open or re-hear a leave application once dismissed
  3. 3 Whether the second application constituted an abuse of process or was barred by res judicata/functus officio

Ratio Decidendi

The summons to re-open a previously dismissed leave application was dismissed because the Court was functus officio and the attempt to re-litigate the same Board decision constituted an abuse of process/res judicata; additionally the second application lacked reasonably arguable grounds as already determined in the prior refusal of leave.

Court Disposition

Summons dismissed.

Orders

  • The summons filed on 9 September 2019 be dismissed.