RE IRFAN MASHOOQ

CAMP 45/2021

[2022] HKCA 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 45 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 710 OF 2017)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  By our judgment dated 25 October 2019 under CAMP 78/2019[1] (“the 2019 CA Judgment”), this Court (Kwan VP and Yuen JA)  refused to grant an extension of time for the applicant to appeal against the decision made by Campbell-Moffat J (“the Judge”)  dated 29 June 2018 under HCAL 710/2017 refusing to grant leave to apply for judicial review in respect of his claim for non-refoulement (“the Judge’s Decision”).

2.  On 8 February 2021, the applicant took out another summons (“the Summons”)  under CAMP 45/2021 to apply for an extension of time to appeal against the Judge’s Decision again.  In the Summons, the applicant stated that “I want to challenge the judgment of the High Court.  My time was over.  Please accept my appeal.”  In his supporting affirmation filed on the same day, he did not provide any ground in support of the Summons save for saying that “As I was over the time limit”.

3.  As the Summons sought to re-litigate the very same matter on which this Court has already made a ruling and is liable to be struck out as an abuse of court process, the Registrar of Civil Appeals on 23 March 2021 directed the applicant to lodge his written submissions stating why the Summons should not be struck out.  The applicant lodged his written submissions on 8 April 2021 (which was late by 1 day).

4.  In the applicant’s submissions, he stated the following:

“I beg most respectfully to state that I applied CAMP in 2019, which decision is not correct. I am not satisfy on that Decision. So I apply CAMP second time, I wish the Honourable Judges of the Court will reconsider my claim. As it was Covid 19 so I could not pay any attention on my CAMP claim. So the Court took decision. But I did not give my submission, and it was my wrong. So I beg sorry to you and please reconsider my claim.”

5.  In the 2019 CA Judgment, this Court had after due consideration held that there were no merits in the intended appeal against the Judge’s Decision.  We had closely examined the decision of the Torture Claims Appeal Board (“the TCAB”)  dated 14 July 2017 and we were satisfied that the TCAB had thoroughly considered the applicant’s case and rightly arrived at the conclusion that the applicant had failed to make out a case for non-refoulement protection under any of the applicable grounds and therefore we found the Judge was plainly right in dismissing the application for leave to apply for judicial review.[2]   

6.  The applicant’s written submissions merely requested this Court to re-consider the Judge’s Decision and he has failed to identify any basis for arguing that he should not be bound by the outcome of the 2019 CA Judgment.

7.  The principle of res judicata clearly applies, and it is an abuse of process of the court for the applicant to re-litigate the same matter.   We see no justification to allow the applicant to do so.

8.  For these reasons, the Summons seeking an extension of time to appeal against the Judge’s Decision is hereby struck out and dismissed.