Read the full judgment text of CACV 243/2019 on BabelCite. This Court of Appeal judgment was delivered on 9 September 2019 before Lam VP, Bharwaney J.
Administrative law – judicial review – non-refoulement claims – Immigration Ordinance (Cap 115) s.37ZG – reopening of torture claim – unified screening mechanism – whether applicant satisfied statutory conditions for reopening claim – whether Board provided sufficient opportunity to present case – appeal against refusal of leave to apply for judicial review – applicant is Indonesian national who overstayed in Hong Kong and lodged torture claim in 2010 – claim rejected in 2012 for failure to return completed questionnaire – subsequent attempt to make non-refoulement claim under USM failed due to non-return of Supplementary Claim Form – applicant cited loss of mobile phone as reason for non-compliance – Director refused to reopen claim and Board dismissed appeal – applicant sought judicial review but leave refused by Deputy High Court Judge – whether the applicant satisfied the statutory conditions under s.37ZG(3) requiring evidence in writing that circumstances beyond her control prevented her from returning the completed SCF – held no, the applicant was aware of the deadline, her loss of mobile phone was an insufficient excuse, and she never produced a completed SCF – whether the Board failed to provide sufficient opportunity to present her claim – held no, the Board held an oral hearing and gave her every opportunity to explain her failure – whether grounds concerning BOR 3 risk, country of origin inquiry, and psychological distress are viable – held no, these grounds were not canvassed below, are fact-and-evidence sensitive, and the Board was not required to evaluate risks of harm where no completed SCF was ever produced – Director's decision not susceptible to judicial review once appeal to Board pursued (Re Moshsin Ali) – same constraints under s.37ZG apply to non-refoulement claims under USM (Ram Chandler) – appeal dismissed.
Legal issues: Whether applicant satisfied statutory conditions to reopen non-refoulement claim under s.37ZG Immigration Ordinance · Whether the Board failed to provide sufficient opportunity to present her claim · Whether grounds concerning BOR 3 risk, country of origin inquiry, and psychological distress are viable
Outcome: Appeal dismissed.
Cited by 35 cases · Cites 4 cases