Kallal Taludker, R (on the application of) v The Secretary of State for the Home Department

A fresh judicial review application raising a matter already adjudicated upon may amount to an abuse of process if it is unsupported by fresh material. The common-law doctrine of res judicata does not necessarily bar a further application, but the court may dismiss it where the applicant seeks to relitigate the same ground without new evidence. This applies particularly where an earlier court has rejected the identical factual contention and the applicant has failed to disclose that earlier determination.

The applicant sought judicial review of the Secretary of State’s refusal of leave to remain as a Tier 4 student. He contended that an earlier notice curtailing his leave had not been effectively served, and that his later application was therefore in time.

The respondent showed that the same contention had already been advanced in earlier Administrative Court proceedings challenging removal directions. Permission had been refused on the papers and again after an oral renewal. The applicant supplied no new evidence, did not attend the Upper Tribunal hearing, and did not disclose the earlier adverse determination.

The central issue was whether the renewed challenge to effective service of the curtailment notice was an abuse of process.

1. The claim for judicial review was dismissed. The applicant’s contention that he had not received the curtailment notice had already been determined against him in the Administrative Court. The Tribunal proceeded in his absence, being satisfied that he had been properly served with notice of the hearing.
2. Applying R (Opoku) v Southwark College Principal [2002] EWHC 2092 (Admin), the Tribunal held that res judicata did not necessarily preclude a fresh application. However, a fresh application without fresh material could constitute an abuse of process.
3. The applicant had adduced no new evidence or other fresh material concerning alleged non-receipt of the curtailment notice. The same issue had been litigated to an oral permission hearing in the Administrative Court. The principles in Opoku therefore applied, and the present claim was an abuse of process.
4. The Tribunal regarded the applicant’s failure to disclose the earlier Administrative Court determination as particularly concerning. It ordered him to pay the respondent’s costs of £2,288, initially on an interim basis. The order would become absolute unless objections were made within seven days of service of the judgment.
5. Considering permission to appeal as required by Rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Tribunal refused permission to appeal to the Court of Appeal.

• Upper Tribunal (Immigration and Asylum Chamber): The present judicial review claim was dismissed as an abuse of process.
• Administrative Court: In earlier proceedings concerning removal directions, permission for judicial review was refused on the papers. The applicant’s oral renewal was also refused on 17 January 2014. No citation for either decision is stated in the judgment.