Read the full judgment text of CACV 40/2018 on BabelCite. This Court of Appeal judgment was delivered on 16 May 2018 before Hon Lam VP, Kwan JA and Barma JA.
Administrative law – non-refoulement claim – judicial review – leave to apply for judicial review – appeal from refusal of leave – application of Ladd v Marshall fresh evidence rule in non-refoulement appeals – minimum level of severity for non-refoulement protection – skeleton submissions – Practice Direction 4.1 – abandonment of right to oral hearing – Bangladesh – Awami League. The applicant, a Bangladeshi national, entered Hong Kong illegally and lodged a non-refoulement claim on 17 July 2013 based on fear of harm or death at the hands of the rival Awami League political party and fear of arrest by Bangladeshi police on false charges. The Director of Immigration rejected the claim on 8 December 2014, finding the feared ill-treatment was unlikely to materialise due to low intensity and frequency, and that state protection and relocation were available. The Torture Claims Appeal Board dismissed the appeal on 20 December 2016. The applicant filed Form 86 on 5 May 2017 seeking leave to apply for judicial review but provided no grounds in his supporting affirmation, merely exhibiting his earlier answers to the Immigration Department. The deputy judge refused leave on 8 February 2018, finding no ground presented and no error of law or procedural unfairness. On appeal, the Court of Appeal considered whether fresh evidence regarding the imprisonment of the applicant's political party leader should be admitted under the Ladd v Marshall rule, holding that the rule generally applies in non-refoulement appeals but may be relaxed in exceptional circumstances, and finding no exceptional circumstances. The court also considered whether the applicant met the minimum level of severity for non-refoulement protection, holding that he did not, given he suffered only minor injuries with no medical attendance needed. The applicant's failure to lodge skeleton submissions as required by Practice Direction 4.1 was treated as abandonment of the right to an oral hearing, and the appeal was processed on paper. The court found no errors of law or procedure in the proceedings before the Director and Board, no reasonably arguable basis to challenge the fairness of the process, and dismissed the appeal.
Legal issues: Whether the judge erred in refusing leave to apply for judicial review · Whether fresh evidence should be admitted on appeal under the Ladd v Marshall rule · Whether the applicant met the minimum level of severity for non-refoulement protection
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld
Cited by 61 cases · Cites 3 cases