Mohammad Mongal Mia v Torture Claims Appeals Board
Court of Appeal
Civil Appeal No 531 of 2019
Barma JA and Judianna Barnes and Lisa Wong JJ
21 April, 7 May 2020

Administrative law — Torture Claims Appeals Board — judicial review — abuse of process — appeal against striking-out of second application for leave to apply for judicial review in respect of same decision — where earlier proceedings had been disclosed in second application — appeal not necessarily abuse of process —Civil procedure — striking-out 

X lodged a non-refoulement protection claim which was rejected by both the Director of Immigration and the Torture Claims Appeals Board (the “Board”). X made an application to the Court for leave to apply for judicial review of the Board’s decision. That application was dismissed, and X did not appeal against it. Instead, almost four months later, X made another application for leave to apply for judicial review of the Board’s decision. In his affirmation filed in support of the application, X claimed that the previous application for leave to apply for judicial review was rejected “due to a lack of presentation” and sought an extension of time to apply for judicial review. The Judge noted the previous unsuccessful application, determined that the application before him was an attempt to re-litigate the same matter, and ordered the application be struck out and dismissed. X appealed against that decision.

Held, dismissing the appeal, that:

1).  While there could be no doubt that to seek to bring multiple judicial reviews in respect of the same decision of the Board was prima facie an abuse of process, an appeal against the striking-out of an application, at least where the earlier proceedings had been disclosed, was not necessarily itself an abuse of process. Accordingly, it was not appropriate to simply strike out the appeal (Re Mamun Mohammad Tuhin Al (CACV 72/2018, [2018] HKEC 2077), Sujan Gazi v Torture Claims Appeal Board (CACV 171/2018, [2018] HKEC 2320), Begum Khadija v Torture Claims Appeal Board (CACV 571, [2018] HKEC 2477) considered; Bepary Shahealom v Torture Claims Appeal Board (CACV 245, [2018] HKEC 3105) explained). (See paras. 18–21.)
2).  However, when consideration was given to the appeal on its merits, the grounds of appeal failed to identify any basis for interfering with the decision of the Judge. The only basis on which the application was dismissed was that it was an abuse of process, being res judicata. That basis for dismissal was not addressed in the notice of appeal, affirmation or skeleton submissions, which were directed more to substantive complaints. (See para. 22.)

Appeal

This was an appeal against the decision of Deputy Judge Bruno Chan striking-out and dismissing the appellant’s application for leave to apply for judicial review of the rejection of his non-refoulement claim by the Torture Claims Appeals Board. The facts are set out in the judgment.

 

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