Read the full judgment text of CAMP 39/2018 on BabelCite. This Court of Appeal judgment was delivered on 20 June 2018 before Hon Lam VP and Barma JA.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement protection claim – Pakistani national claiming risk of harm from PML(N) supporters – extension of time to appeal – duty of litigant to keep court informed of current address – arguability of intended appeal as a factor – whether Board has duty to advise applicant to obtain medical evidence – whether oral hearing is a right – enhanced scrutiny of Board decisions – Order 53 rule 4 – Order 53 Rule 3(4) – Order 59 Rule 2A(8) – The applicant, a Pakistani national, arrived in Hong Kong on 18 February 2015 and sought non-refoulement protection based on risk of harm from Tariq Bajwa and members of PML(N) due to his support for PTI. The Director of Immigration rejected his claims on 19 May 2015 (BOR 3, persecution, and torture risks) and on 20 December 2016 (BOR 2 risk). The Torture Claims Appeal Board dismissed his first appeal on 12 August 2015 and his second appeal on 23 June 2017 without a hearing. Deputy High Court Judge Woodcock refused leave to apply for judicial review on 5 March 2018, finding the application in respect of the Director's Decision and the 1st Board Decision was substantially delayed without explanation, and the application in respect of the 2nd Board Decision was not reasonably arguable. The applicant did not appeal within the 14-day period under Order 53 Rule 3(4) and by summons dated 28 March 2018 sought an extension of time. Held, dismissing the application: (1) It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner; the consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant. (2) Although the delay in the present case is short, the arguability of the intended appeal is an important consideration in an application for extension of time, and the crucial consideration is whether the applicant can show a reasonable prospect of success in the intended judicial review. (3) The Board has no duty to advise the applicant to obtain medical reports and evidence; the applicant had the benefit of legal representation before the Director and at the Board hearing. (4) An oral hearing is not a matter of right but a matter of the adjudicator's discretion. (5) The Board's rejection of the risk of harm claim was a matter of merits, and there were no errors of law or procedural irregularity in the proceedings. The summons of 28 March 2018 is dismissed. Pursuant to Order 59 Rule 2A(8), no party may request this determination be reconsidered at an oral hearing inter partes.
Legal issues: Whether extension of time to appeal should be granted · Whether Board had duty to advise applicant to obtain medical evidence · Whether Board's decision was procedurally unfair or irrational
Outcome: Application for extension of time to appeal dismissed; intended appeal has no prospect of success.
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