SHRESTHA KRISHNA v. PETER NGUYEN, ESQ., TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

SHRESTHA KRISHNA v. PETER NGUYEN, ESQ., TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

The second leave application was dismissed because it was an unjustified duplication while an earlier leave application existed and because the applicant s failure to respond to invitations for additional facts justified rejection of his non-refoulement claim; res judicata and procedural rules (Order 53) required that dissatisfaction with the earlier decision be addressed by appeal rather than by refiling a leave application.

Citation
[2018] HKCFI 1588
Parties
Applicant: Shrestha Krishna; 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
17 August 2018
Case Number
HCAL935/2017
Procedural Posture
Judicial Review (leave Application) / Leave Application Dismissed (notification of Decision)
Outcome
Second leave application for judicial review dismissed
Legal Topics
Non Refoulement, Torture Risk, Article 3 HKBOR, Refugee Protection (article 33), Res Judicata, Leave to Apply for Judicial Review
Source Language
EN
Immigration Law Constitutional Law Human Rights Administrative Law Non Refoulement Torture Risk Article 3 HKBOR Refugee Protection (article 33) +2 more

Case Brief

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Parties

Shrestha Krishna

Applicant

Torture Claims Appeal Board/Non-Refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Judicial Review (leave Application) / Leave Application Dismissed (notification of Decision)

Legal Issues

  1. 1 Whether the applicant faces a real risk of torture under Part VIIC Immigration Ordinance
  2. 2 Whether the applicant faces a risk of torture or cruel, inhuman or degrading treatment under Article 3 HKBOR
  3. 3 Whether the applicant faces a risk of persecution under Article 33 of the 1951 Refugee Convention (non-refoulement)

Ratio Decidendi

The second leave application was dismissed because it was an unjustified duplication while an earlier leave application existed and because the applicant s failure to respond to invitations for additional facts justified rejection of his non-refoulement claim; res judicata and procedural rules (Order 53) required that dissatisfaction with the earlier decision be addressed by appeal rather than by refiling a leave application.

Court Disposition

Second leave application for judicial review dismissed

Orders

  • Second leave application for judicial review dismissed