Read the full judgment text of CACV 242/2017 on BabelCite. This Court of Appeal judgment was delivered on 16 March 2018 before Cheung CJHC, Lam VP.
Civil procedure – judicial review – leave to apply for judicial review – non-refoulement claim – appeal from refusal of leave – whether new grounds may be raised on appeal from refusal of leave – applicant is Pakistani national who entered Hong Kong illegally on 15 June 2009 and was arrested on the same day – non-refoulement claim based on fear of being harmed by three customers with whom applicant had a political fight while working as a waiter at a restaurant – Director of Immigration rejected claim on 30 July 2015 – supplemental decision of 9 June 2017 also rejected BOR 2 risk – Torture Claims Appeal Board dismissed appeal on 29 March 2017 – applicant sought leave to apply for judicial review – deputy judge refused leave – applicant appealed – whether new grounds not raised below can be raised on appeal from refusal of leave – held no, an appeal is not the occasion for an applicant to introduce new grounds and allowing this would enable flagrant disregard of the stringent time limit in Order 53 Rule 4(1) – whether deputy judge erred in refusing leave – whether adjudicator's decision involved errors of law or procedural unfairness in assessing country of origin information, state protection, and risk – held no, the applicant's safety was assessed in accordance with the law in terms of the torture risk, the BOR 3 risk, and the persecution risk – matters such as imprisonment of relatives and identity of attackers were all taken into account by the director, adjudicator, and deputy judge – no reasonable basis to challenge the process in terms of high standard of procedural unfairness – determination of merits is a matter for the director and the board, not the court – appeal dismissed – leave to apply for judicial review refused.
Legal issues: Whether new grounds not raised below may be raised on appeal from refusal of leave to apply for judicial review · Whether the deputy judge erred in refusing leave to apply for judicial review
Outcome: Appeal dismissed
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