MUTUNGI DORCUS AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

MUTUNGI DORCUS AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

The court extended time and granted leave to apply for judicial review because the intended challenge was reasonably arguable: the Board had arguably erred in finding the 2nd Applicant was not included in the Notice of Appeal, had not properly assessed the applicants' explanations for late filing nor made reasonable enquiries (notably with DLS) as to service, and had failed to consider the merits of the appeal as a relevant matter under s37ZT(2); given the seriousness of the non‑refoulement stakes and the arguability of the grounds, it was just to allow late filing and grant leave.

Citation
[2023] HKCFI 2658
Parties
1st Applicant: Mutungi Dorcus; 2nd Applicant (minor): Mutungi Lisa Diallo; Putative Respondent: Torture Claims Appeal Board; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 October 2023
Case Number
HCAL1215/2020
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Stage (court Granted Leave and Extended Time)
Outcome
Leave to apply for judicial review granted; extension of time granted; Form 86 amended to include 2nd Applicant; directions given for representation and filing
Legal Topics
Non Refoulement, Torture Risk, Late Filing of Appeal, Extension of Time, Procedural Fairness, Unified Screening Mechanism, Best Interests/minor Representation, Wednesbury Unreasonableness
Source Language
EN
Administrative Law Immigration Law Constitutional Law Human Rights Law Judicial Review Non Refoulement Torture Risk Late Filing of Appeal +5 more

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Parties

Mutungi Dorcus

1st Applicant

Mutungi Lisa Diallo

2nd Applicant (minor)

Torture Claims Appeal Board

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Stage (court Granted Leave and Extended Time)

Legal Issues

  1. 1 Whether the Court should grant extension of time for application for leave to apply for judicial review
  2. 2 Whether leave to apply for judicial review should be granted
  3. 3 Whether the Torture Claims Appeal Board erred in finding that the 2nd Applicant was not included in the Notice of Appeal

Ratio Decidendi

The court extended time and granted leave to apply for judicial review because the intended challenge was reasonably arguable: the Board had arguably erred in finding the 2nd Applicant was not included in the Notice of Appeal, had not properly assessed the applicants' explanations for late filing nor made reasonable enquiries (notably with DLS) as to service, and had failed to consider the merits of the appeal as a relevant matter under s37ZT(2); given the seriousness of the non‑refoulement stakes and the arguability of the grounds, it was just to allow late filing and grant leave.

Court Disposition

Leave to apply for judicial review granted; extension of time granted; Form 86 amended to include 2nd Applicant; directions given for representation and filing

Orders

  • Leave to amend Form 86 to include the 2nd Applicant Mutungi Lisa Diallo granted
  • Extension of time for the application for leave to apply for Judicial Review of the Torture Claims Appeal Board decision dated 23 December 2019 granted