Read the full judgment text of CACV 456/2019 on BabelCite. This Court of Appeal judgment was delivered on 28 May 2020 before Kwan VP and Yuen JA.
Administrative and public law – judicial review – non-refoulement protection claim – abuse of process – res judicata – second leave application following refusal of first – duty of full and frank disclosure in ex parte application – appeal struck out and dismissed on paper – Pakistani national entered Hong Kong illegally in October 2013 and lodged non-refoulement protection claim – Director of Immigration rejected claim on all grounds (torture, BOR 3, persecution) by Notice of Decision dated 22 March 2016 – Torture Claims Appeal Board rejected late notice of appeal as filed 15 weeks out of time under section 37ZT(2) of the Immigration Ordinance, Cap 115 – first leave application HCAL 466/2017 refused by DHCJ Woodcock and not appealed – second leave application HCAL 426/2018 against the same Board decision dismissed by DHCJ Bruno Chan as abuse of process – issue whether second leave application constituted abuse of process by reason of res judicata – held yes, the principle of res judicata applied and re-litigating the same Board decision was an abuse of process – issue whether non-disclosure of the first leave application breached the duty of full and frank disclosure – held yes, the applicant withheld the vital fact of the prior unsuccessful application from the court and the Registry, amounting to a serious abuse of process following Begum Khadija – issue whether the appeal should be struck out or dismissed on the merits – held both, following Mohammad Mongal Mia, the appeal is wholly without merit as none of the grounds of appeal addressed the res judicata basis for dismissal – applicant failed to lodge skeleton argument by the extended deadline, so appeal was dealt with on paper – appeal struck out and dismissed – Director invited to consider remitting the matter to the Board for assessment and determination of the BOR2 risk (risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383).
Legal issues: Whether the second leave application for judicial review is an abuse of process by reason of res judicata · Whether the failure to disclose the first leave application in the second ex parte application constitutes a breach of the duty of full and frank disclosure · Whether the appeal should be struck out or dismissed on the merits
Outcome: Appeal struck out and dismissed as an abuse of process and for being wholly without merit.
Cited by 159 cases · Cites 8 cases