AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD

CACV 298/2021

[2021] HKCA 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2021

(ON APPEAL FROM HCAL NO 376 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

1.  By Notice of Decision and Notice of Further Decision dated 15 June 2016 and 21 April 2017 respectively, the Director of Immigration rejected the applicant’s non-refoulement claim on all applicable grounds.

2.  On 21 June 2017, the Torture Claims Appeal Board (“the Board”) dismissed the applicant’s appeal against the Director’s decisions (“the Board’s Decision”).

3.  On 29 March 2018, Deputy High Court Judge Bruno Chan dismissed the applicant’s application for leave to apply for judicial review of the Board’s Decision in HCAL 335/2017 (“the 1^st JR Decision”).

4.  On 6 September 2018, the Court of Appeal dismissed the applicant’s application for an extension of time to appeal against the 1^st JR Decision in CAMP 62/2018, finding that the applicant had no prospect of success in the intended appeal.  His further application for leave to appeal the Court of Appeal’s judgment was dismissed by the Court of Appeal on 23 November 2018.

5.  Meanwhile, on 8 March 2018, the applicant filed another Form 86 (“the 2^nd Form 86”) to apply for leave to apply for judicial review of the Board’s Decision, but did not put forward any ground to justify a second application to challenge the Board’s Decision.

6.  On 3 June 2021, Deputy High Court Judge Bruno Chan struck out the second Form 86 on the ground of abuse of process and dismissed the applicant’s second application for leave to apply for judicial review (“the 2^nd JR Decision”).

7.  On 8 June 2021, the applicant filed the Notice of Appeal herein against the 2^nd JR Decision, stating as follows:

“The High Court Judge Mr Bruno Chan struck out and dismissed my leave application, but what is the reason? Do I [not] have right to get justice?”

8.  The applicant’s second application for leave to apply for judicial review of the Board’s Decision is patently an abuse of the court’s process (see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763), and was rightly struck out by Deputy High Court Judge Bruno Chan.  The present appeal is unarguable.

9.  Accordingly, the Notice of Appeal dated 8 June 2021 is struck out, and the appeal is dismissed.

10.  Should the applicant make any further application for leave to apply for judicial review of the Board’s Decision, the Court of First Instance should consider making a restricted proceedings order against the applicant to prevent such abuse of process under the court’s inherent jurisdiction.