Read the full judgment text of CACV 70/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 December 2018 before Lam VP and Barma JA.
Administrative law – judicial review – non-refoulement claims – Immigration Ordinance – functus principle – withdrawal of appeal – delay – Torture Claims Appeal Board/Non-refoulement Claims Petition Office – whether functus principle applies to Board following valid withdrawal of appeal – held: yes, following HT v Betty Kwan – whether judicial review of Director's Decision out of time – held: yes, application brought more than two years after decision – whether applicant's own letters to Immigration Department reviewable – held: no, they are not decisions – appeal dismissed with no order as to costs – BOR 2 risk claim was not the subject of the Director's Decision and was not raised before the Board – court suggested applicant should make a BOR 2 claim to the Director at the earliest opportunity, noting the practice of inviting applicants to raise BOR 2 claims was not consistent with treating them as 'subsequent claims' under section 37ZO – Court of Appeal applied the approach of the UK Asylum and Immigration Tribunal in Ap v Secretary of State for Home Department that withdrawal must be deliberate and informed to be valid – section 37V(2)(b) of the Immigration Ordinance supports finality upon disposal of appeal – Director appeared neutrally at court's request.
Legal issues: Whether the functus principle applies to the Board following valid withdrawal of an appeal · Whether the application for judicial review of the Director's Decision was out of time · Whether the applicant's two letters to the Immigration Department could be the subject of judicial review
Outcome: Appeal dismissed. The judicial review as framed by the applicant had no prospects of success.
Cited by 45 cases · Cites 1 case