Read the full judgment text of CACV 294/2017 on BabelCite. This Court of Appeal judgment was delivered on 5 June 2018 before Cheung CJHC and Lam VP.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement claim – BOR 2, BOR 3, persecution and torture risks – Indian national – overstayer – claim based on fear of harm from maternal uncles arising from land dispute – Director of Immigration's decisions rejecting claim – Board's dismissal of appeal on grounds of credibility, implausibility, delay, and hearsay – Whether applicant can raise new ground of appeal (lack of legal representation) for the first time on appeal against refusal of leave – Whether high standard of fairness under Prabakar and FB v Director of Immigration prescribes an absolute right to free legal representation at all stages of non-refoulement proceedings – Whether Director and Board erred in law or procedure – Whether applicant met the minimum level of severity required to ground non-refoulement protection – Held: appeal dismissed; no prospect of success in the intended judicial review – High standard of fairness does not confer an absolute right to free legal representation at all stages – Applicant's injuries expressly described as minor, failing the high threshold of severity (Ubamaka; GA v Director of Immigration) – Court will not usurp role of Director and Board as primary decision-makers in evaluating evidence (Re Lakhwinder Singh) – New grounds not raised below cannot be raised on appeal against refusal of leave, to prevent disregard of the stringent time limit in O.53 r.4(1) of the Rules of the High Court (Re Qadir Sher).
Legal issues: Raising new grounds of appeal for the first time in an appeal against refusal of leave for judicial review · Right to free legal representation in non-refoulement proceedings · Minimum level of severity required for non-refoulement protection · Errors of law or procedure in the Director's and Board's handling of the claim
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
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