Read the full judgment text of CACV 54/2018 on BabelCite. This Court of Appeal judgment was delivered on 24 August 2018 before Lam VP and McWalters JA.
Administrative law – judicial review – non-refoulement claim – extension of time – Order 53, rule 4(1), Rules of the High Court (Cap 4A) – High Court Ordinance (Cap 4) s.14AA – whether leave to appeal required – two-tier administrative structure – Immigration Ordinance (Cap 115) Part VIIC and Schedule 1A – Torture Claims Appeal Board – Director of Immigration – BOR 2, BOR 3, persecution and torture risks – Bangladeshi national – extortion by persons associated with BNP – applicant overstayed and re-entered Hong Kong illegally – board found applicant unreliable and a liar – deputy judge refused extension of time and leave to apply for judicial review – applicant appealed in person and failed to lodge skeleton submissions contrary to unless order – Court of Appeal followed Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 in holding that an extension of time is a discrete application from the application for leave under Order 53, rule 3 and that an applicant outside the three-month time limit must obtain an extension of time under Order 53, rule 4(1) before the application for leave can be entertained – decision refusing extension of time is interlocutory and requires leave to appeal under s.14AA of the High Court Ordinance (Cap 4) – one-month delay in challenging government decision is not insignificant given strong public interest in expedition and the generous three-month time limit – applicant's explanation of awaiting BOR 2 petition was unsatisfactory – leave to appeal refused – decision of immigration officer superseded by decision of board and not susceptible to judicial review once board appeal pursued – evaluation of risk of harm primarily for director and board, court will not re-assess on merits – intended judicial review had no realistic prospect of success – Notice of Appeal struck out – appeal dismissed.
Legal issues: Whether leave to appeal should be granted against the deputy judge's refusal of an extension of time to apply for leave to apply for judicial review · Whether the Director of Immigration's decision is susceptible to judicial review after an unsuccessful appeal to the Torture Claims Appeal Board · Whether the intended judicial review of the board's decision has a realistic prospect of success
Outcome: Application for leave to appeal refused; Notice of Appeal struck out; appeal dismissed.
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