Read the full judgment text of CACV 12/2018 on BabelCite. This Court of Appeal judgment was delivered on 4 September 2018 before Cheung CJHC and Lam VP.
Administrative law – judicial review – non-refoulement claims – subsequent claims – limitation – section 37ZO of the Immigration Ordinance – paragraphs 82 and 83 of the Director's guidance note for determination of Non-refoulement claims – torture claim and other non-refoulement claims – United Nations Convention against Torture (USM) regime – Bill of Rights (BOR 2 and BOR 3) – non-derogable rights – continuing duty of the Director – significant change of circumstances – realistic prospect of success – whether subsequent claim based on same facts as previously rejected claim can succeed – out-of-time application – leave to apply for judicial review – Section 14AA of the High Court Ordinance – leave to appeal – MI v Secretary for Security [2018] HKCA 419 – Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 – Al Husin v Bosnia and Herzegovina [2012] ECHR 232 – applicant Indian national removed in 2014 – illegal re-entry in 2015 – subsequent claims in 2016 and 2017 – Director's decisions of 21 June 2016 and 2 June 2017 – applicant's claims based on uncle's seizure of his land, threats, attacks, and police inaction – previously considered in 2013 assessment – whether leave to appeal under Section 14AA should be granted for out-of-time challenge – no good explanation for delay – whether administrative constraints on subsequent claims applicable to non-torture claims – yes, by virtue of USM guidance – whether such constraints prevent genuine claims with realistic prospect of success – court adds caveat per Ubamaka – Director cannot ignore BOR 2 and BOR 3 duty while applicant in Hong Kong – whether subsequent claim had realistic prospect of success – no – materials did not show significant change of circumstances – appeal dismissed.
Legal issues: Whether to grant leave under Section 14AA of the High Court Ordinance for the out-of-time challenge to the 21 June 2016 decision · Whether the Director's limitation on subsequent non-refoulement claims was correctly applied to the 2 June 2017 decision · Whether the subsequent non-refoulement claim had a realistic prospect of success
Outcome: Leave to appeal against the judge's refusal to extend time in respect of the 21 June 2016 decision is refused under Section 14AA of the High Court Ordinance; the appeal against the refusal of leave in respect of the 2 June 2017 decision is dismissed.
Cited by 34 cases · Cites 3 cases