Read the full judgment text of CACV 284/2017 on BabelCite. This Court of Appeal judgment was delivered on 4 May 2018 before Lam VP and Barma JA.
Civil procedure – judicial review – leave to apply for judicial review – abuse of process – functus officio – re-litigation – successive applications concerning the same decision – whether filing a second leave application is an abuse of process following refusal of first leave application – delay of more than 6 months in seeking judicial review – appellant Indian national whose non-refoulement claim was rejected by Director of Immigration and Torture Claims Appeal Board – whether Board hearing bundle provided 6 days before hearing caused prejudice – whether quality of interpretation and lack of free legal representation at Board stage gave grounds for judicial review – whether non-compliance with directions to lodge skeleton argument amounts to abandonment of right to oral hearing – Practice Direction 4.1 – appeal processed on paper after appellant's non-compliance with unless order – Court of Appeal held court below was functus officio and second application was a blatant attempt to re-litigate the same matter and an abuse of process citing Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 – held no real prejudice shown from timing of hearing bundle and that applicant should have sought translation and Duty Lawyer Service assistance earlier – Ground 2 not a free-standing ground – no absolute right to free legal representation at all stages of non-refoulement proceedings following Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187, FB v Director of Immigration [2009] 2 HKLRD 346, Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37 – non-compliance with skeleton argument unless order treated as abandonment of right to oral hearing – no error of law or procedure before the Board – no reasonably arguable basis to challenge fairness of process – appeal dismissed.
Legal issues: Functus officio and re-litigation in successive judicial review leave applications · Time delay in seeking leave to apply for judicial review · Adequacy of hearing bundle timing and interpretation assistance before the Board · Right to free legal representation in non-refoulement appeals · Consequences of non-compliance with skeleton argument directions
Outcome: Appeal dismissed.
Cited by 214 cases · Cites 4 cases