Read the full judgment text of HCAL 166/2019 on BabelCite. This Court of First Instance judgment was delivered on 11 August 2022 before Deputy High Court Judge Bruno Chan.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement claim – extension of time – procedural fairness – right to legal representation – right to translation – whether delay of 1.5 years justified – whether Board correct to refuse late filing of Notice of Appeal – Nepali national claiming risk of harm from Maoist supporters due to political support for rival Nepali Congress party – arrived in Hong Kong January 2014, overstayed, arrested 10 February 2014 – Director of Immigration rejected claim 10 April 2015 on grounds of torture risk under part VIIC of Immigration Ordinance Cap 115, BOR 3 risk, and persecution risk under Article 33 of 1951 Refugee Convention – Board dismissed appeal 7 April 2017 after oral hearing – Further Decision 15 November 2017 rejected BOR 2 claim – Board refused late filing of appeal 11 January 2019 under Section 37ZT(2) – applicant filed Form 86 17 January 2019 challenging all four decisions – issue whether to extend time for application 1.5 years late against first Board decision – court applied four factors from AW v Director of Immigration [2016] 2 HKC 393, namely length of delay, reason for delay, merits of intended application, and prejudice to putative respondent and public administration – held inordinate delay with no explanation offered despite proper service at reported address – extension of time refused – issue whether Board's refusal of late filing of Notice of Appeal 27 days late was correct – Board entitled under Section 37ZT(2) to take account of substance of appeal per Re Qasim Ali [2019] HKCA 430 – applicant offered only bare uncorroborated assertion of late receipt and repeated already-rejected grounds – issue whether lack of legal representation rendered proceedings procedurally unfair – Court of Appeal consistently held in Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, Re Lopchan Subash, and Re Zafar Muazam that neither Sakthevel Prabakar (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51/2007 confers absolute right to free legal representation at all stages – applicant had DLS representation before Director and interpreter assistance at first Board hearing – ground not arguable – issue whether lack of translation of Board decisions rendered proceedings procedurally unfair – applicant failed to particularise any specific misunderstanding by Board – ground had no basis or merits – judicial review is not a rehearing of non-refoulement claim and court will not usurp role of Director or Board absent identified legal error, procedural unfairness, or irrationality per Re Lakhwinder Singh, Re Daljit Singh, Re Mudannayakalage Chaminda Pushpa Kumara, and Nupur Mst v Director of Immigration – risk found to be localized with reasonable internal relocation available per TK v Jenkins [2013] 1 HKC 526 – no error of law or procedural unfairness identified – leave to apply for judicial review refused against both Board decisions.
Legal issues: Extension of time for judicial review application against Board's first decision · Whether the Board was correct to refuse late filing of the Notice of Appeal · Whether lack of legal representation rendered the proceedings procedurally unfair · Whether lack of translation of Board's decisions rendered the proceedings procedurally unfair
Outcome: Extension of time refused; leave to apply for judicial review refused against both Board decisions.
Cited by 31 cases · Cites 12 cases