Read the full judgment text of CACV 125/2019 on BabelCite. This Court of Appeal judgment was delivered on 3 October 2019 before Hon Lam VP, Barma JA and Au JA.
Administrative law – judicial review – non-refoulement claim – dismissal for want of prosecution – applicant's failure to attend oral hearing of leave application – whether single non-attendance justifies dismissal – exercise of appellate jurisdiction to consider merits of judicial review – compliance with Practice Direction 4.1 on skeleton submissions – applicant a Bangladeshi national who entered Hong Kong illegally in 2008 and lodged a non-refoulement claim based on threats from an opposing political party – Director of Immigration rejected claim on 15 December 2016 in respect of all four grounds (BOR 2, BOR 3, persecution risk, torture risk) – Torture Claims Appeal Board dismissed appeal on 11 July 2018 finding the applicant fabricated his claim – applicant filed Form 86 seeking leave to apply for judicial review – applicant failed to attend hearing on 8 March 2019 – Deputy High Court Judge KW Lung dismissed application for want of prosecution with liberty to apply to set aside under RHC Order 32 rule 6 – applicant did not exercise liberty to apply but appealed – applicant failed to lodge skeleton submissions in compliance with court's direction and was debarred from doing so – appeal dealt with on paper – first issue: whether dismissal for want of prosecution was justified – held, no – mere failure to attend a single hearing does not of itself establish abuse of process or lack of intention to pursue the application – following Wing Fai Construction Co Ltd (in liq) v Yip Kwong Robert (2011) 14 HKCFAR 935, dismissal for want of prosecution is a remedy of last resort – in non-refoulement cases it is inherently unlikely that an applicant would not wish to pursue a claim designed to prevent removal from Hong Kong – the more appropriate course is to treat the absence as a waiver of the oral hearing and determine the application on the papers – liberty to apply under RHC Order 32 rule 6 was also inapt as Order 32 applies to chamber proceedings – second issue: whether the judicial review application has merit – held, no – the grounds in the Form 86 were general complaints bearing no relation to the facts – complaint about late provision of hearing bundle was unfounded as bundle was provided within the required timeframe – complaint about Board's reliance on news articles was not particularised – assessment of evidence and credibility is a matter for the Board, not the reviewing court – third issue: whether the appeal should be allowed – held, no – pursuant to RHC Order 59 rule 10(3) and (4), the court considered the merits of the underlying application and found it wholly without merit and without prospects of success – appeal dismissed – for the future, applicants who request oral hearings but fail to attend should be informed via the notice of hearing that they will be deemed to have waived the right to an oral hearing and the court will proceed to consider the claim on the papers.
Legal issues: Dismissal for want of prosecution where applicant fails to attend oral hearing of leave application · Merits of the application for leave to bring judicial review
Outcome: Appeal dismissed. Application for leave to apply for judicial review held to be wholly without merit and without prospects of success.
Cited by 187 cases · Cites 3 cases