ASLAM EHSAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

ASLAM EHSAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

The application for judicial review against the Director's Decisions is dismissed because, following appellate structure as explained in Re: Moshsin Ali, an immigration officer's decision is not susceptible to judicial review once an appeal to the Board is pursued; leave is granted against the Board's Decisions because the Board incorrectly treated itself as precluded from considering the merits when deciding whether to allow late filing under s.37ZT and thereby failed to exercise the required discretion.

Citation
[2019] HKCFI 2837
Parties
Applicant: Aslam Ehsan; 1st Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; 2nd Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 November 2019
Case Number
HCAL1619/2018
Procedural Posture
Judicial Review Leave Application / Leave Granted in Part; Directions Issued
Outcome
Leave to apply for judicial review granted in respect of the Appeal Board's Decision and the Board's Further Decision; application for leave to apply for judicial review against the Director's Decisions dismissed.
Legal Topics
Judicial Review, Leave to Apply for Judicial Review, Non Refoulement, Torture Risk, Extension of Time for Appeal, Procedural Deadlines, Appeal Rights
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Law Refugee Law Judicial Review Leave to Apply for Judicial Review Non Refoulement +4 more

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Parties

Aslam Ehsan

Applicant

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

1st Respondent

Director of Immigration

2nd Respondent

Procedural Posture

Judicial Review Leave Application / Leave Granted in Part; Directions Issued

Legal Issues

  1. 1 Whether the Director of Immigration's decisions are susceptible to judicial review once an appeal to the Appeal Board is pursued
  2. 2 Whether the Appeal Board lawfully refused late filing of notices of appeal and whether it was precluded from considering the merits
  3. 3 Whether leave to apply for judicial review should be granted against the Appeal Board's decisions given its approach to s.37ZT of the Immigration Ordinance

Ratio Decidendi

The application for judicial review against the Director's Decisions is dismissed because, following appellate structure as explained in Re: Moshsin Ali, an immigration officer's decision is not susceptible to judicial review once an appeal to the Board is pursued; leave is granted against the Board's Decisions because the Board incorrectly treated itself as precluded from considering the merits when deciding whether to allow late filing under s.37ZT and thereby failed to exercise the required discretion.

Court Disposition

Leave to apply for judicial review granted in respect of the Appeal Board's Decision and the Board's Further Decision; application for leave to apply for judicial review against the Director's Decisions dismissed.

Orders

  • Order dated 22 February 2019 dismissing application for want of prosecution set aside
  • Leave to apply for judicial review granted in respect of the Board's Decisions and Board's Further Decision