SHRESTHA SUBASH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

SHRESTHA SUBASH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Leave was refused because the Board lawfully exercised its statutory preliminary discretion under s37ZT to refuse late filing: the applicant's delay (about nine months) was extraordinary, he failed to provide requisite documentary or medical evidence of stress as special circumstances, and there was no realistic...

Source-derived case information.

Citation
[2018] HKCFI 2639
Parties
Applicant: Shrestha Subash; Putative Respondent: Torture Claims Appeal Board / Non-Refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 December 2018
Case Number
HCAL1070/2017
Procedural Posture
Application for Leave to Apply for Judicial Review / Decision on Leave (refused)
Outcome
Leave to apply for judicial review refused.
Legal Topics
Non Refoulement, Torture Risk, Article 3 HKBOR, Late Filing of Appeal, Procedural Fairness, Leave to Apply for Judicial Review
Source Language
en
Constitutional Law Administrative Law Immigration Law Human Rights Law Non Refoulement Torture Risk Article 3 HKBOR Late Filing of Appeal +2 more

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Parties

Shrestha Subash

Applicant

Torture Claims Appeal Board / Non-Refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Decision on Leave (refused)

Legal Issues

  1. 1 Whether the Appeal Board properly refused leave to file a late notice of appeal under section 37ZT of the Immigration Ordinance
  2. 2 Whether the Board breached procedural fairness by not holding an oral hearing or considering COI
  3. 3 Whether the Director’s merits decision on non-refoulement and torture risk contained legal error

Ratio Decidendi

Leave was refused because the Board lawfully exercised its statutory preliminary discretion under s37ZT to refuse late filing: the applicant's delay (about nine months) was extraordinary, he failed to provide requisite documentary or medical evidence of stress as special circumstances, and there was no realistic prospect of success on the merits of his substantive non-refoulement/torture claim given the Director's lawful assessment of low risk and available protection or relocation.

Court Disposition

Leave to apply for judicial review refused.

Orders

  • Leave to apply for judicial review refused.