Read the full judgment text of CAMP 113/2018 on BabelCite. This Court of Appeal judgment was delivered on 4 March 2019 before Cheung JA, Chu JA.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement claim – Torture Claims Appeal Board – extension of time to appeal – Rules of the High Court, Cap. 4A, Order 59 rule 2A and rule 14A(1), Order 53 rule 3(4) – Immigration Ordinance, Cap. 115, Part VIIC – Hong Kong Bill of Rights Ordinance, Cap. 383 – 1951 Convention relating to the Status of Refugees, Article 33 – Guinean national entered Hong Kong September 2009, raised torture claim July 2010 treated as non-refoulement claim under Unified Screening Mechanism – claim based on fear of former President Dadia Camara and Guinean military after 2007 protest against demolition of houses in Bombeto, Ratoma, Conakry – Director of Immigration rejected claim on 19 March 2015 and 31 October 2016 on torture, BOR 3, persecution and BOR 2 grounds – Board dismissed appeal on 12 May 2017 finding claim speculative and hearsay and that state protection and internal relocation reasonably available – Deputy High Court Judge Woodcock refused leave to apply for judicial review on 29 September 2017 – applicant filed summons on 16 July 2018, nine months out of time, seeking leave to appeal out of time – four-factor test from Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 – length of delay, reasons for delay, prospect of intended appeal and prejudice – Court accepts explanation of delay but prospect of success is the crucial factor – applicant's arguments directed at Board's decision not the Judge's – Judge's conclusion that Board's decision satisfied the enhanced Wednesbury test was correct – whether non-refoulement claimant has absolute right to free legal representation at all stages – relying on Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17 and Re Lopchan Subash [2018] HKCA 37, Court holds there is no such absolute right under Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 or FB v. Director of Immigration HCAL 51 of 2007 – applicant was represented by Duty Lawyer Service lawyer before Director – application for leave to appeal out of time refused and summons dismissed.
Legal issues: Whether to grant extension of time to appeal against refusal of leave to apply for judicial review · Whether non-refoulement claimants have an absolute right to free legal representation before the Torture Claims Appeal Board
Outcome: Application for leave to appeal out of time refused; summons dismissed.
Cited by 782 cases · Cites 9 cases