Read the full judgment text of CACV 72/2018 on BabelCite. This Court of Appeal judgment was delivered on 25 July 2018 before Lam VP, Kwan JA, Poon JA.
Civil appeal – judicial review – leave to apply for judicial review – non-refoulement protection claim – second application for leave to challenge same Torture Claims Appeal Board decision – res judicata – abuse of process – whether second application is an abuse of the Court's process – applicant a national of Bangladesh arrested for illegal entry on 11 August 2013 – non-refoulement claim lodged 16 August 2013 alleging risk from ruling Awami League – Director rejected claims on 11 April 2016 (BOR 3, persecution, torture risk) – Further Decision of 24 April 2017 also rejected BOR 2 risk – Torture Claims Appeal Board dismissed appeals on all grounds on 12 May 2017 – first leave application in HCAL 217/2017 refused on 24 November 2017 by Deputy High Court Judge Woodcock – no appeal from that refusal – second leave application in HCAL 1149/2017 filed on 28 December 2017 challenging same Board Decision – Form 86 contained no grounds – supporting affirmation repeated same grounds as first application – no extension of time sought and no explanation of delay – judge dismissed second application as abuse of process – whether res judicata and abuse of process applied – whether judge was required to consider substantive grounds once abuse of process found – Court of Appeal held that once a matter is judicially decided it is finally decided and cannot be re-litigated on its merits or substance unless on appeal, following Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 – second application commenced about one month after first refusal was blatant attempt to re-litigate same matter and clear abuse of process – judge correctly identified res judicata principles and gave sufficient reasons – no need to address substantive grounds once abuse of process established – appeal dismissed – warning that any further proceedings to challenge the same decision may attract a Restrictive Proceedings Order under the approach in Secretary for Justice & Anr v Yuen Oi Yee & Ors [2006] 1 HKLRD 679.
Legal issues: Whether second judicial review application was an abuse of process / res judicata · Whether judge needed to address substantive grounds once abuse of process found
Outcome: Appeal dismissed.
Cited by 33 cases · Cites 2 cases