Read the full judgment text of CACV 2/2018 on BabelCite. This Court of Appeal judgment was delivered on 23 March 2018 before Lam VP, Chu JA, L Wong J.
Civil appeal – non-refoulement claim – judicial review – leave refused – Pakistani national entered Hong Kong illegally in 2006 and claimed protection under Article 3 CAT and subsequently under the unified screening mechanism – fear of harm or killing by Mr Sikandar and false police accusation in Pakistan – claims assessed as torture risk, BOR 3 risk, persecution risk and BOR 2 risk – Director and Torture Claims Appeal Board rejected claims citing availability of state protection and internal relocation in Pakistan – application for leave to apply for judicial review refused in applicant's absence by M Poon J – whether new evidence of a September 2017 shooting incident at family home should be admitted on appeal applying Ladd v Marshall test – held evidence not admitted as first and second requirements not met and no exceptional circumstances – whether applicant's absence from leave hearing constitutes a ground of appeal – held mere absence without more is not a ground of appeal under O.53, r.3(3) RHC – whether CAT/BOR 2/BOR 3/persecution claimant has absolute right to free legal representation at all stages – held no absolute right following Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan and Re Lopchan Subash; Sakthevel Prabakar does not prescribe such a right – whether alleged lack of language assistance amounts to procedural irregularity – held no irregularity as applicant's English-language filings showed ability to obtain assistance and no complaint was made at Board hearing – no error of law in decisions of Director and Board – intended judicial review has no realistic prospect of success – Appeal dismissed.
Legal issues: Admissibility of new evidence on appeal in non-refoulement judicial review · Effect of applicant's absence from leave hearing on right of appeal · Right to free legal representation in non-refoulement proceedings · Procedural unfairness from alleged lack of language assistance
Outcome: Appeal dismissed; leave to apply for judicial review stands refused.
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