Read the full judgment text of CACV 245/2018 on BabelCite. This Court of Appeal judgment was delivered on 29 October 2018 before Lam VP, M Poon and L Chan JJ.
Administrative and immigration law – non-refoulement claim – Torture Claims Appeal Board – judicial review leave – abuse of process – re-litigation – out-of-time application – failure to extend time – Order 53, rule 4(1) – duty of full and frank disclosure – standard of review – error of law – procedural unfairness – irrationality – enhanced Wednesbury test – state acquiescence – assessment of evidence – Bangladesh national of Bangladeshi Nationalist Party background claiming fear of harm from Awami League members and government – Illegal entry to Hong Kong on 29 December 2013 – non-refoulement claim lodged 1 January 2014 – Director of Immigration rejected claim by decisions of 26 January 2016 and 23 December 2016 – Torture Claims Appeal Board dismissed appeal on 16 February 2017 as bare assertion without objective evidence – first application for leave to apply for judicial review HCAL 62/2017 dismissed on 21 July 2017 and not appealed – second application HCAL 562/2017 filed on 29 August 2017 – Deputy High Court Judge Woodcock refused leave on 11 June 2018 – applicant appealed in person – whether bringing a second judicial review on the same board decision after first refusal constitutes abuse of process – held yes, prima facie abuse of process under Re Mamun Moihammad Tuhin Al, Sujan Gazi v TCAB and Begum Khadija v TCAB – applicant filed no written submissions and failed to advance reasons to displace conclusion – applicant also failed in duty of full and frank disclosure by not informing judge of prior proceedings – whether out-of-time leave application requires extension of time – held yes under Kwok Cheuk Kin v Leung Chun Ying, an extension of time must be obtained – applicant's passing reference to Order 53, rule 4(1) insufficient and no explanation for delay given – whether board decision disclosed error of law, procedural unfairness or irrationality – held no – assessment of evidence, risk of harm and state protection primarily for Board and Director – Court will not intervene absent errors of law, procedural unfairness or irrationality – COI materials from 2010 and 2011 outdated and arguments merely regurgitated per Re Morol Rana – new ground that board misdirected itself on past torture rejected – appeal struck out and dismissed.
Legal issues: Whether second judicial review on same board decision after first refusal constitutes abuse of process · Whether extension of time required for out-of-time leave application · Whether board decision disclosed any error of law, procedural unfairness, or irrationality
Outcome: Appeal struck out and dismissed as an abuse of process; in any event, dismissed on the merits
Cited by 29 cases · Cites 8 cases