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

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

Leave to apply for judicial review was granted because it was reasonably arguable that the Adjudicator, in refusing the Applicant's late filing, did not consider relevant matters of fact within the Board's knowledge (prison mailing procedures and the Director's decision being served via the Duty Lawyer Service), such that judicial review of the Adjudicator's preliminary decision was properly arguable; the Director's decision is not subject to judicial review once an appeal to the Board is pursued.

Citation
[2019] HKCFI 2339
Parties
Applicant: Samad; 1st Putative Respondent: Torture Claims Appeal Board / Non-refoulement Claims Petition Office; 2nd Putative Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 September 2019
Case Number
HCAL328/2018
Procedural Posture
Judicial Review (leave Application) / Leave Granted
Outcome
Leave granted to apply for judicial review against the Adjudicator's decision refusing late filing of the notice of appeal by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Legal Topics
Non Refoulement, Leave to Apply for Judicial Review, Late Filing of Appeal, Service and Notice, Procedural Fairness, Internal Relocation, Standard of Review
Source Language
EN
Immigration Law Administrative Law Constitutional Law Human Rights Refugee/asylum Law Non Refoulement Leave to Apply for Judicial Review Late Filing of Appeal +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Samad

Applicant

Torture Claims Appeal Board / Non-refoulement Claims Petition Office

1st Putative Respondent

Director of Immigration

2nd Putative Respondent

Procedural Posture

Judicial Review (leave Application) / Leave Granted

Legal Issues

  1. 1 Whether the Applicant could seek leave for judicial review against the Director's screening decision once an appeal to the Board was pursued
  2. 2 Whether the Adjudicator erred in refusing to allow late filing of the notice of appeal under s.37ZT by failing to take into account relevant matters of fact within the Board's knowledge (prison posting procedures and DLS service)
  3. 3 Whether the delay (four days) was serious or substantial and whether special circumstances existed to allow late filing

Ratio Decidendi

Leave to apply for judicial review was granted because it was reasonably arguable that the Adjudicator, in refusing the Applicant's late filing, did not consider relevant matters of fact within the Board's knowledge (prison mailing procedures and the Director's decision being served via the Duty Lawyer Service), such that judicial review of the Adjudicator's preliminary decision was properly arguable; the Director's decision is not subject to judicial review once an appeal to the Board is pursued.

Court Disposition

Leave granted to apply for judicial review against the Adjudicator's decision refusing late filing of the notice of appeal by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Orders

  • Leave to apply for judicial review granted
  • Applicant to issue an originating summons in compliance with Order 53 rule 5(5) of the Rules of the High Court within 14 days after grant of leave