Read the full judgment text of FACV 1/2020, FACV 2/2020 on BabelCite. This 終審法院 judgment was delivered on 19 June 2020 before 馬道立, 李義, 霍兆剛, 張舉能, 紀立信.
Civil procedure – judicial review – leave to apply for judicial review – extension of time for out-of-time application – dependent visa refused by Director of Immigration – judicial review sought out of time – Court of Final Appeal – two consolidated appeals – whether leave to appeal to Court of Appeal required under s.14AA(1) of the High Court Ordinance (Cap 4) when CFI refuses extension of time for leave to apply for judicial review – whether s.14AB of the High Court Ordinance inconsistent with Article 82 of the Basic Law – constitutional jurisdiction of Court of Final Appeal – Order 59 r.21(1)(g) of the Rules of the High Court – Order 53 r.4(1) – s.21K(6) and (7) of the High Court Ordinance – proper construction of leave application and extension of time – inseparable nature of delay and leave questions – whether extension of time application is an 'independent application' – whether refusal of extension of time is a 'final' or 'interlocutory' decision – meaning of 'refusal of leave to apply for judicial review' – whether refusal of extension of time determines a party's substantive rights in a summary manner – Lord Goff and Lord Slynn in Reg. v Dairy Tribunal, Ex parte Caswell and Reg. v Criminal Injuries Compensation Board, Ex parte A – R v Stratford-on-Avon District Council, Ex parte Jackson – Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 – Supreme Court Act 1981 (UK) – Senior Courts Act 1981 (UK) – Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 – Court of Appeal's earlier decision in MI & IYW v Permanent Secretary for Security [2018] HKCA 419 – not followed – BI v Director of Immigration [2016] 2 HKLRD 520 – not sufficient to support MI – 協興木業有限公司對鄧文傑及另一人 (2004) 7 HKCFAR 212 – Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another (2003) 6 HKCFAR 222 – Hong Kong Court of Final Appeal holds: no leave to appeal required under s.14AA(1) of the High Court Ordinance (Cap 4) when CFI refuses extension of time for leave to apply for judicial review, as refusal of extension of time necessarily results in refusal of leave and is a component part of the latter decision, falling within Order 59 r.21(1)(g) – constitutional issue not decided as unnecessary – appeals allowed in both cases – MI case overruled to the extent stated in section D.3 of the judgment – appellants do not need to first obtain leave under s.14AA(1) of the High Court Ordinance – right of appeal to Court of Appeal as of right – further proceedings of appeals to await Appeal Committee's decision on the other legal questions – costs to be dealt with by written submissions – 14 days for appellants' costs submissions – 14 days thereafter for respondent's submissions – 7 days thereafter for appellants' reply submissions.
Legal issues: Whether leave to appeal to the Court of Appeal is required when the Court of First Instance refuses to extend time for an application for leave to apply for judicial review · Whether s.14AB of the High Court Ordinance is inconsistent with Article 82 of the Basic Law
Outcome: Both appeals allowed (limited to the determination that the appellants do not need to first obtain leave under section 14AA(1) of the High Court Ordinance (Cap 4) to appeal to the Court of Appeal the orders of Chow J refusing their applications for leave to apply for judicial review). The Court of Appeal's decision in MI & IYW v Permanent Secretary for Security [2018] HKCA 419 was overruled to the extent stated in section D.3 of the judgment. The other legal questions in FAMV 415/2019 and FAMV 3/2020 were adjourned for determination on another day
Cited by 174 cases · Cites 16 cases