Case Commentary

The Court of Final Appeal to consider whether out of time judicial review applicants have right of appeal

The Court of Final Appeal to consider whether out of time judicial review applicants have right of appeal

Decision

On 10 March 2020, the Appeal Committee of the Court of Final Appeal in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 5 granted leave to appeal to the CFA on the following questions:

  • Where the Court of First Instance does not grant an extension of time to a party to apply for leave to apply for judicial review, particularly when the hearing of the application to extend takes place at the same time as the hearing for leave to apply for judicial review, is leave to appeal to the Court of Appeal required under s.14AA(1) of the High Court Ordinance (Cap. 4) (“HCO”), or is leave not required by reason of s.14AA(2) or otherwise?
  • If leave to appeal is required, is s.14AB of the HCO, insofar as it relates to judicial review proceedings, inconsistent with Article 82 of the Basic Law?

The appeals will be heard on 19 June 2020. The determination can be found here.

Summary

These appeals concern the right of appeal for applicants in judicial review proceedings filed out of time. In particular, they will affect whether such applicants would need leave to appeal to the Court of Appeal (CA) and whether they would have any chance of further appeal to the Court of Final Appeal (CFA).

In Kwok Cheuk Kin v Leung Chun Ying; MI and IYW v Permanent Secretary for Security [2018] 4 HKC 440, the CA held that, where judicial review proceedings were filed out of time, the application for extension of time to bring the proceedings is a discrete application from the application for leave to apply for judicial review. The CA further held that the application for extension of time is an interlocutory decision which requires leave to appeal to the CA. Question (1) challenges the correctness of these rulings.

Moreover, if the CA’s position is correct, this would mean that the CA’s decision on leave to appeal would be final, pursuant to s.14AB of the HCO. An applicant in such proceedings would have no chance of further appeal to the CFA. If so, Question (2) arises as to whether this will be inconsistent with the CFA’s power of final adjudication in the Basic Law.

Tim Parker and Geoffrey Yeung, both led by Philip Dykes S.C., acted for the applicants in H and AH respectively.