MAMUN MOHAMMAD TUHIN AL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1149/2017

[2018] HKCFI 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1149 OF 2017

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J U D G M E N T

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1.  The applicant is a Bangladeshi national who was arrested by the police on 11 August 2013 for entering Hong Kong illegally. He lodged a claim for non-refoulement on 16 August 2013 and it was rejected by the Director of Immigration (“the Director”) on 11 April 2016 and 24 April 2017. He appealed that decision and it was rejected by the Torture Claims Appeal Board (“TCAB”) on 12 May 2017. He filed a notice of application for leave to apply for judicial review on 19 May 2017 (“the 1^st application”). He applied for legal aid but that was refused. His application was subsequently refused on 24 November 2017 by this same court, see HCAL 217/2017. The applicant did not appeal that decision to the Court of Appeal.

2.  I refused leave of the applicant’s 1^st application on the basis that there was no realistic prospect of success.  The adjudicator had made no error of law, there was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness and the substantive decision was not Wednesbury unreasonable.

3.  The applicant then wrote to this court in December 2017, repeated the facts of his claim and asked this court to reconsider the decision.  I replied and informed him that this court’s order had been perfected and the court no longer had jurisdiction to decide again or deal with his leave application any further.

4.  Despite or rather in spite of my determination, the applicant has filed another, a second application (“the 2^nd application”) for leave to apply for judicial review of the same TCAB decision on 28 December 2017 and filed the same supporting affirmation with the same grounds.  He has applied for legal aid again on 21 February 2018; I suspect he has not informed the legal aid that it is for the same application to judicial review the same decision which has already been refused once before.

5.  In the 2^nd application he does not ask for an extension of time to file this application as it is of course late, it should be filed within three months of the date of the TCAB decision.  He gives no reasons for any delay which is required as mentioned in the application form, the Form 86.  He makes no mention of the delay in the supporting affirmation.  It is as if he is hoping no one will notice it is a 2^nd application and he had his 1^st application refused.

6.  Clearly the principle of res judicata applies in this case; once a matter is judicially decided it is finally decided.  This doctrine bars re‑litigation of matters that have already been judged on its merits or its substance.  This application has been decided by a court already, it is therefore finally resolved and cannot be determined again, unless on appeal.  The applicant cannot be allowed to abuse the process in this manner because that is what it is, an abuse; the time has come to accept he has no further recourse in this court on this basis.  

7.  Although the applicant has requested an oral hearing in this 2^nd application, I take the view that this abuse of process means I can ignore that request and proceed to deal with this summarily and without a hearing. After all, I suspect the intention of the applicant in filing a 2^nd application is to buy time and if I take the time to fix an oral hearing which will require a certain amount of time to arrange in the court diary then that is playing into the applicant’s hand. Hence, my decision, despite the request, to deal with this expeditiously and on the papers. This application is accordingly dismissed.

8.  This applicant is not alone in his abuse of the process.  There have been a number of other applicants who have filed 2^nd applications in this manner recently.  The principle of res judicata will apply to them; these applications are an abuse of the process and will not be tolerated.  These 2^nd applications will be dealt with swiftly and they will not achieve what the applicants hope to achieve.