ALI ASGHAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER [Decision on Leave Application]

ALI ASGHAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER [Decision on Leave Application]

Leave was granted because it was reasonably arguable that the Board, when refusing late filing, failed to take account of the merits of the applicant's appeal as required by Re Qasim Ali and the statutory scheme, thereby meeting the threshold for judicial review; consequently the matter warrants substantive consideration by the court.

Citation
[2019] HKCFI 2667
Parties
Applicant: Ali Asghar; 1st Respondent: Torture Claims Appeal Board; 2nd Respondent: The Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 December 2019
Case Number
HCAL1162/2018
Procedural Posture
Judicial Review / Leave Granted to Apply for Judicial Review
Outcome
Leave granted to apply for judicial review of the Torture Claims Appeal Board's decision dated 8 June 2018
Legal Topics
Non Refoulement, Torture Claim, Leave to Apply for Judicial Review, Late Filing of Appeal, Procedural Fairness
Source Language
EN
Constitutional and Administrative Law Immigration Law Human Rights Non Refoulement Torture Claim Leave to Apply for Judicial Review Late Filing of Appeal Procedural Fairness

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Parties

Ali Asghar

Applicant

Torture Claims Appeal Board

1st Respondent

The Director of Immigration

2nd Respondent

Procedural Posture

Judicial Review / Leave Granted to Apply for Judicial Review

Legal Issues

  1. 1 Whether the Torture Claims Appeal Board erred in refusing to allow late filing of the notice of appeal
  2. 2 Whether the Board failed to take account of the merits of the appeal when deciding to refuse late filing
  3. 3 Whether the Director properly considered evidence of state acquiescence/collusion and country information in rejecting the non-refoulement/torture claim

Ratio Decidendi

Leave was granted because it was reasonably arguable that the Board, when refusing late filing, failed to take account of the merits of the applicant's appeal as required by Re Qasim Ali and the statutory scheme, thereby meeting the threshold for judicial review; consequently the matter warrants substantive consideration by the court.

Court Disposition

Leave granted to apply for judicial review of the Torture Claims Appeal Board's decision dated 8 June 2018

Orders

  • Leave granted to the applicant to apply for judicial review of the Torture Claims Appeal Board's decision dated 8 June 2018
  • Applicant to file an originating summons within 14 days of the order and serve a copy with all relevant documents on the Board as first respondent and the Director of Immigration as second respondent