Read the full judgment text of HCAL 673/2019 on BabelCite. This Court of First Instance judgment was delivered on 8 August 2022 before Deputy High Court Judge K.W. Lung.
Administrative law – judicial review – leave to apply – non-refoulement claim – Indian national – claim of harm by Mr. Goyal, a businessman connected with the Shiromani Akali Dal, after exposing alleged drug trafficking activities to police – alleged assaults, rearrest on fabricated drug charges and police detention – Director dismissed claim on BOR 3 risk, Torture risk and Persecution risk (Director's First Decision) and on BOR 2 risk (Director's Second Decision) – Board dismissed appeal against Director's First Decision finding material aspects not credible – applicant filed notice of appeal against Director's Second Decision approximately 3 months and 24 days late – Board refused to extend time under s.37ZT(2)(b) of the Immigration Ordinance (Cap. 115) – application for leave to apply for judicial review of Board's decision – whether Board correct in refusing to extend time – whether applicant has realistic chance of success – supervisory role of Court – Court will not interfere with Board's findings on delay and explanation for change of address – Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 widened scope of Board's consideration to cover merits of the case – Board's decision predates that judgment – leave is discretionary and should not be granted where there is no realistic chance of success – under Kulwinder Kaur [2002] HKCA 48, rejection of BOR 3 risk entails no arguable BOR 2 risk – applicant raised no additional information – leave refused and application dismissed – Re Khan Kamal Ahmed [2019] HKCA 377 – Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2002] HKCA 48 – AA v Sweden (2017) 64 EHRR 20 – RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015) – AW v. Director of Immigration and William Lam CACV 63 of 2015 – TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 – Nupur Mst v Director of Immigration [2018] HKCA 524 – Immigration Ordinance (Cap. 115) s.37ZT(2)(b) – s.37ZT(2) – s.37ZT(3) – Hong Kong Bill of Rights Ordinance (Cap. 383) Section 8 Article 2 – Article 3 – Rules of the High Court Order 53 r. 3.
Legal issues: Whether the Board was correct in refusing to extend time for late filing of the notice of appeal · Whether the Board should have considered the merits under Re Khan Kamal Ahmed and whether the applicant has a realistic chance of success
Outcome: Leave to apply for judicial review refused; the application is dismissed.
Cited by 30 cases · Cites 5 cases