SHISHPAL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

SHISHPAL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

Ex parte leave was set aside and the judicial review dismissed because the applicant unjustifiably delayed applying for leave and failed to make full and frank disclosure in the ex parte application; the asserted merits did not overcome the prejudice to good administration and the Director/TCAB credibility and...

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Citation
SHISHPAL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant: SHISHPAL; 1st Putative Respondent: THE DIRECTOR OF IMMIGRATION; 2nd Putative Respondent: TORTURE CLAIMS APPEAL BOARD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 May 2017
Case Number
HCAL38/2016
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Ex Parte Leave Granted; Leave Later Set Aside; Judicial Review Application Dismissed
Outcome
Ex parte leave set aside; application for judicial review dismissed
Legal Topics
Delay and Extension of Time, Duty of Full and Frank Disclosure in Ex Parte Applications, Credibility Findings in Asylum/torture Claims, Wednesbury Unreasonableness/supervisory Jurisdiction, State Protection and Acquiescence
Source Language
en
Immigration Law Administrative Law Constitutional Law Human Rights (torture/non Refoulement) Delay and Extension of Time Duty of Full and Frank Disclosure in Ex Parte Applications Credibility Findings in Asylum/torture Claims Wednesbury Unreasonableness/supervisory Jurisdiction +1 more

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Parties

SHISHPAL

Applicant

THE DIRECTOR OF IMMIGRATION

1st Putative Respondent

TORTURE CLAIMS APPEAL BOARD

2nd Putative Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Ex Parte Leave Granted; Leave Later Set Aside; Judicial Review Application Dismissed

Legal Issues

  1. 1 Whether the applicant’s delay in applying for judicial review was unjustified and disentitles him to leave under Order 53 r 4(1) and s21K(6) High Court Ordinance
  2. 2 Whether the applicant breached the duty of full and frank disclosure in obtaining ex parte leave
  3. 3 Whether the Director and TCAB’s adverse credibility findings and conclusions on state protection/acquiescence were unlawful or Wednesbury unreasonable

Ratio Decidendi

Ex parte leave was set aside and the judicial review dismissed because the applicant unjustifiably delayed applying for leave and failed to make full and frank disclosure in the ex parte application; the asserted merits did not overcome the prejudice to good administration and the Director/TCAB credibility and acquiescence findings were not Wednesbury unreasonable.

Court Disposition

Ex parte leave set aside; application for judicial review dismissed

Orders

  • Ex parte leave granted on 18 July 2016 set aside
  • Application for judicial review dismissed