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

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

Leave was granted because there is a reasonably arguable case that the Director's Notice of Decision was received by the Applicant's legal representative on 11 April 2018 (not 3 April), making the Appeal timely, and alternatively that the Board acted unreasonably and failed to make necessary inquiries or consider special circumstances; these points are sufficient to meet the low threshold for leave.

Citation
[2020] HKCFI 2526
Parties
Applicant: J; 1st Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; 2nd Respondent: WONG Chun-kong qua Adjudicator of the Non-refoulement Claims Petition Office; Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 October 2020
Case Number
HCAL385/2019
Procedural Posture
Application for Leave to Apply for Judicial Review (immigration/non Refoulement) / Leave Granted on Papers
Outcome
Leave to apply for judicial review granted
Legal Topics
Non Refoulement, Late Filing of Appeal, Procedural Fairness, Time Computation for Service, Wednesbury Unreasonableness
Source Language
EN
Immigration Law Administrative Law Constitutional Law Judicial Review Non Refoulement Late Filing of Appeal Procedural Fairness Time Computation for Service +1 more

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Parties

J

Applicant

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

1st Respondent

WONG Chun-kong qua Adjudicator of the Non-refoulement Claims Petition Office

2nd Respondent

Director of Immigration

Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review (immigration/non Refoulement) / Leave Granted on Papers

Legal Issues

  1. 1 Whether the Notice of Appeal was filed within the statutory 14-day period after the Director's Notice of Decision was given
  2. 2 Whether the Board erred in law or acted unreasonably in refusing to allow late filing of the Notice of Appeal
  3. 3 Whether the Adjudicator failed to make necessary inquiries about the date of service and thereby breached procedural fairness

Ratio Decidendi

Leave was granted because there is a reasonably arguable case that the Director's Notice of Decision was received by the Applicant's legal representative on 11 April 2018 (not 3 April), making the Appeal timely, and alternatively that the Board acted unreasonably and failed to make necessary inquiries or consider special circumstances; these points are sufficient to meet the low threshold for leave.

Court Disposition

Leave to apply for judicial review granted

Orders

  • Grant leave to apply for judicial review
  • Applicant to file an originating summons within 14 days