Case Detail

AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD

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[2021] HKCA 1636-EN-2021-11-15

AKBAR MD FAISHAL v. TORTURE CLAIMS APPEAL BOARD

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CACV 298/2021

[2021] HKCA 1636

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)

________________________

BETWEEN
	AKBAR MD FAISHAL	Applicant
and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Au and Chow JJA in Court

Date of Written Submission: 27 October 2021

Date of Judgment: 15 November 2021

____________________

JUDGMENT

____________________

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

1. On 5 October 2021, this Court gave its judgment (“the CA Judgment”) striking out the Applicant’s Notice of Appeal dated 8 June 2021 and dismissing the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 3 June 2021 whereby the Judge struck out the Applicant’s Form 86 dated 8 March 2018 on the ground of abuse of process and dismissed his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 21 June 2017.

2. The Applicant now applies by Notice of Motion dated 12 October 2021 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the following is stated:

“The High Court dismissed my leave to apply for judicial review against the Adjudicator of TCAB. I appealed. My [appeal] is dismissed. I want to go to the Court of Final Appeal.”

3. In his written submissions dated 27 October 2021, the Applicant repeated his claimed fear of harm upon return to India.

4. Under s 22(1)(b) of the Hong Kong Court of Final Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of, inter alia, the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Appeal the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. There is also no basis to grant leave to appeal on the “otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Ordinance.

6. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person

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)

________________________

BETWEEN
	AKBAR MD FAISHAL	Applicant
and
	TORTURE CLAIMS APPEAL BOARD	Putative
		Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Au and Chow JJA in Court

Date of Judgment:

5 October 2021

________________________

JUDGMENT

________________________

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.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person