Mohammed Selim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of FAMV 145/2019 on BabelCite. This FAMV judgment was delivered on 22 July 2020 before Ribeiro PJ, Fok PJ, Cheung PJ.
Administrative law – judicial review – non-refoulement claims – Torture Claims Appeal Board – leave to appeal – Hong Kong Court of Final Appeal Ordinance (Cap 484) s.22(1)(b) – Hong Kong Bill of Rights Article 2 – whether an appeal lies to the CFA from the CA's refusal of an extension of time refusing to entertain an appeal to the CA out of time from the decision of the CFI refusing leave to apply for judicial review – whether it is reasonably arguable that the applicants should be granted leave to apply for judicial review in light of the failure of the Director of Immigration and the TCAB to specifically address a possible ground based on Article 2 of the Hong Kong Bill of Rights – applications listed for disposal under Rule 7 of the Court of Final Appeal Rules – Appeal Committee directed consolidated oral hearing on two identified questions – pending hearing, Director reconsidered all four applications in relation to BOR2 and maintained his decisions after giving applicants an opportunity to make further representations – 1st and 3rd applicants petitioned TCAB against further decisions; 2nd applicant did not; 4th applicant withdrew all non-refoulement claims – substantive BOR2 question became academic and amicus curiae did not support grant of leave – jurisdiction question also became academic – leave to appeal refused on both questions – applications dismissed – line of authority suggesting appeals against refusal of extension of time by Court of Appeal not susceptible to further appeal noted, with contrary view in Lau Luen Hung Thomas v Insider Dealing Tribunal – resolution of difference to await more appropriate occasion.
Legal issues: Whether leave to appeal should be granted on the BOR2 substantive question and the CFA jurisdiction question
Outcome: All four applications for leave to appeal to the Court of Final Appeal dismissed.
Cited by 4 cases · Cites 6 cases
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FAMV Nos. 110, 145, 188 and 401 of 2019 [2020] HKCFA 25 FAMV No. 110 of 2019 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 110 OF 2019 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CAMP NO. 116 OF 2018) ________________________ BETWEEN
________________________ FAMV No. 145 of 2019 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 145 OF 2019 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 386 OF 2018) ________________________ BETWEEN
________________________ FAMV No. 188 of 2019 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 188 OF 2019 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CAMP NO. 185 OF 2018) ________________________ BETWEEN
________________________ FAMV No. 401 of 2019 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 401 OF 2019 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CAMP NO. 61 OF 2019) ________________________ BETWEEN
________________________ (HEARD TOGETHER)
_______________________________ REASONS FOR DETERMINATION _______________________________ The Appeal Committee: 1.At the hearing, we dismissed these applications for leave to appeal to the Court for reasons which are now provided. 2.The present applications were all listed for disposal pursuant to Rule 7 of the Court’s Rules.[1] However, the Appeal Committee directed that there should be a consolidated oral hearing, inviting submissions from the parties regarding the following issues:
3.Pending the present hearing, the following developments occurred:
4.Since the Director has now given due consideration to all the BOR2 claims, the issue identified in Question 2 by the Appeal Committee has become academic. Ms Queenie Lau, who presented very helpful submissions on an amicus brief, did not support the grant of leave on that Question. 5.Accordingly, we refused all the applicants leave to appeal on Question 2. 6.Having refused leave on the substantive BOR2 question, the issue of jurisdiction referred to in Question 1 also became academic. Whether or not an application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s refusal of an extension of time to appeal against the Court of First Instance’s refusal of leave to apply for judicial review is legally competent does not matter in the present case since leave is in any event refused. 7.A line of authority suggests that appeals against such a refusal of an extension of time by the Court of Appeal are not susceptible to further appeal.[2] A contrary view was taken by the Appeal Committee in Lau Luen Hung Thomas v Insider Dealing Tribunal.[3] Resolution of the difference will have to await a more appropriate occasion.
The Applicants, appeared in person The Putative Respondent (1st Respondent), not attended Mr Jonathan Chang SC, instructed by the Department of Justice and Ms Liesl Lai, Government Counsel, of the Department of Justice, for the Putative Interested Party (2nd Respondent) Ms Queenie Lau, amicus curiae [1] Hong Kong Court of Final Appeal Rules (Cap 484). [2] Including HLF v MTC (2004) 7 HKCFAR 167; The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Limited (2017) 20 HKCFAR 240 at §§29-31; Chee Fei Ming v Director of Food and Environmental Hygiene (2017) 20 HKCFAR 64; Wong Yu Cho Rolly trading as Marco Polo and China Oversea Technical Development v Ho Chi Sum, HCMP 1394/2007, Cheung JA and Lam J (29 July 2008) at §7; and 杭州日月電器股份有限公司v The Registrar of Companies, HCMP 2647/2014, Lam VP and Kwan JA (30 April 2015) at §9. [3] (2009) 12 HKCFAR 955. |
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