Read the full judgment text of CACV 164/2017 on BabelCite. This Court of Appeal judgment was delivered on 16 March 2018 before Cheung CJHC and Lam VP.
Administrative law – judicial review – leave to apply for judicial review – torture claim / non-refoulement claim – Torture Claims Appeal Board – BOR 2 / BOR 3 / persecution / torture risk – applicant from Togo, member of opposition party ANC (Alliance of National Change) – Director of Immigration rejected claim; Board dismissed appeal – whether judge erred in refusing leave – whether claimant has absolute right to free legal representation at all stages – whether fresh evidence admissible on appeal. The applicant, a Togolese national, claimed a well-founded fear of persecution and risk of torture on return due to his membership of the ANC following 2013 fires in Lome and Kara. The Director of Immigration rejected his claims and the Board dismissed his appeal, finding that the country of origin information did not show an indiscriminate link of ANC members to the fires, that the alleged mysterious telephone calls and disappearance of a friend were insufficient to establish risk, and that the applicant's claim was vague. The applicant sought judicial review, but Chung J refused leave, finding the application not reasonably arguable. The Court of Appeal dismissed the appeal, holding that the primary decision maker is the Board and the court should not usurp its role; the Board had carefully considered the relevant country of origin information and its analysis was logical and adequate. On the complaint of lack of legal representation before the Board, the Court held that neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribes an absolute right to free legal representation at all stages for CAT, BOR 2, BOR 3 or persecution risk claimants. On the applicant's attempt to introduce unspecified 2013/14 documents on appeal, the Court held that the Ladd v Marshall [1954] 1 WLR 1489 test generally applies to limit fresh evidence on appeal, and the applicant had failed to produce the documents, give a satisfactory explanation for non-production, or provide a definite date for availability. The Court found no error of law or procedure and no reasonably arguable basis to challenge the fairness of the process, and dismissed the appeal. Leave to apply for judicial review was refused.
Legal issues: Whether the judge erred in refusing leave to apply for judicial review of the Board's decision · Whether a torture/BOR claimant has an absolute right to free legal representation at all stages · Whether fresh evidence not before the Board or the judge should be admitted on appeal
Outcome: Appeal dismissed; the Court of Appeal found no prospect of success in the intended application for judicial review.
Cited by 332 cases · Cites 2 cases