Read the full judgment text of CACV 244/2017 on BabelCite. This Court of Appeal judgment was delivered on 16 March 2018 before Cheung CJHC and Lam VP.
Civil procedure – judicial review – leave to apply – non-refoulement claim – BOR 2 risk – procedural fairness – right to legal representation – appeal from refusal of leave – Pakistani national entered Hong Kong illegally in September 2009 and lodged non-refoulement claim based on fear of harm by Pakistani mafia over land dispute regarding family house in North Karachi – Director rejected claim and BOR 2 risk assessment – TCAB dismissed appeal on 26 May 2017 – First issue: whether new grounds concerning lack of legal representation not raised in original leave application can be raised on appeal against refusal of leave – Court holds new grounds cannot be raised on appeal, otherwise Order 53 Rule 4(1) time limit would be flouted – Second issue: whether lack of legal representation in BOR 2 proceedings renders process unfair – Court holds no absolute right to free legal representation at all stages under Sakthevel Prabakar and FB v Director of Immigration, following Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan and Re Lopchan Subash – Third issue: whether applicant was denied chance to submit additional facts for BOR 2 claim – Court holds director's 13 September 2016 letter and Adjudicator's oral invitation provided adequate opportunity – No procedural unfairness – Judge's application of enhanced Wednesbury test and Prabakar fairness standard endorsed – Appeal dismissed
Legal issues: Whether new grounds not raised in the original leave application can be raised on appeal against refusal of leave · Whether lack of legal representation in BOR 2 proceedings renders the process unfair · Whether the applicant was denied the opportunity to submit additional facts for the BOR 2 claim
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 331 cases · Cites 5 cases