Read the full judgment text of CACV 547/2018 on BabelCite. This Court of Appeal judgment was delivered on 8 April 2019 before Yeung Acting CJHC, Lisa Wong J.
Civil procedure – judicial review – leave to apply for judicial review – appeal against refusal of leave – non-refoulement claim – Pakistani national fearing harm from uncle and cousins over land dispute and political affiliation with PTI – Director of Immigration rejected non-refoulement claim – applicant in prison and illiterate – notice of appeal to Torture Claims Appeals Board filed 8 days out of time – no reason for delay given in section 5 of the notice of appeal – explanation provided in subsequent letter that applicant was illiterate and could not find an educated person to help him – Board refused application for late filing under s 37ZT of the Immigration Ordinance applying the three-stage approach in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 – first-instance judge refused leave to apply for judicial review – whether Board's findings that the 8-day delay was serious and significant and that applicant had no good reason for the breach were Wednesbury unreasonable – yes, reasonably arguable that findings were unreasonable given service took 6 days, applicant was in prison and illiterate, and Board did not disbelieve but merely found explanation unacceptable – whether Board should have considered merits of the underlying non-refoulement claim under s 37ZT(2)(b) – yes, it would be unjust not to allow late filing where appeal is meritorious, and merits are matters of fact within Board's knowledge – whether Court of Appeal can allow new grounds in interest of justice – yes, discretion exists not to be exercised lightly, following Re MD Zahidur Rahman Manik and Re Khan Kamal Ahmed – appeal allowed – leave to apply for judicial review granted – applicant to file and serve originating summons within 14 days from date of judgment setting out the Wednesbury unreasonableness ground and the merits ground under s 37ZT(2)(b).
Legal issues: Wednesbury reasonableness of Board's findings on 8-day delay · Consideration of merits of the appeal in deciding late filing application · Allowing new grounds on appeal from refusal of leave for judicial review
Outcome: Appeal allowed; leave to apply for judicial review granted.
Cited by 204 cases · Cites 4 cases