Read the full judgment text of CAMP 44/2017 on BabelCite. This Court of Appeal judgment was delivered on 8 February 2018 before Lam VP and Au J.
Civil procedure – extension of time – appeal from refusal of leave to apply for judicial review in non-refoulement claim – Order 53 Rule 3(4) – 14-day time limit – adequate explanation for delay – real prospect of success – bare assertion of late receipt of court order – duty to provide working address – procedural fairness – legal representation – Duty Lawyer Scheme – language assistance – interpretation – Board's case management – excusing Director from attending – further decision by Director – legal aid – fresh application on appeal – HCAL 286/2017. The applicant, a Pakistani national who entered Hong Kong illegally and surrendered to police, lodged a torture claim which was rejected by the Director of Immigration and then by the Torture Claims Appeal Board. He applied for leave to apply for judicial review of the Board's decision, raising three grounds: lack of legal representation, lack of language assistance, and lack of communication. The deputy judge refused leave, finding no error of law, no procedural unfairness, and that the claim was not reasonably arguable. The applicant failed to lodge an appeal within the 14-day period and applied for an extension of time, asserting he only received the court order on 9 October 2017. The Court of Appeal held that the applicant provided no adequate explanation for the delay because it is the duty of a litigant to provide a working address to which correspondence can be sent, and the consequence of any delay occasioned by an ineffectual address falls on the litigant. The court further held that even in the absence of an adequate explanation, the intended appeal had no real prospect of success. The applicant's complaints about lack of legal representation at the appeal stage lacked merit because legal representation under the Duty Lawyer Scheme was available, and the applicant was made aware of this but proceeded in person. The complaint about lack of language assistance lacked merit because the applicant proceeded in English, all his documents were in English, and he did not pinpoint any inaccuracy in his Non-refoulement Form. The complaint about the Board excusing the Director from attending the hearing was not a valid ground of appeal, as the conduct of proceedings is a matter of case management. New materials regarding a Further Decision by the Director and a refused legal aid appeal were not relevant to whether the judge erred, as an appeal is not a fresh application. The summons for extension of time was dismissed.
Legal issues: Whether the applicant provided an adequate explanation for the delay in filing the appeal · Whether the intended appeal has a real prospect of success
Outcome: Extension of time refused; summons dismissed
Cited by 83 cases · Cites 6 cases