Read the full judgment text of CACV 110/2018 on BabelCite. This Court of Appeal judgment was delivered on 2 August 2018 before Chu JA and Barma JA.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement claim – torture claim – appeal from refusal of leave – new grounds on appeal – Immigration Ordinance (Cap 115) Part VIIC – Hong Kong Bill of Rights articles 2 and 3 – 1951 Refugee Convention article 33 – Whether new grounds not raised in the Form 86 or supporting affirmation may be raised on appeal from refusal of leave – Whether there is any reasonably arguable basis to challenge the Director's and Board's decisions – Whether alleged ill-treatment meets the minimum level of severity – The 1st applicant, an Indonesian national and former domestic helper, overstayed in Hong Kong and raised a non-refoulement claim based on alleged threats from her uncle and a man named Sumarno – The 2nd applicant is her daughter born in Hong Kong – The Director of Immigration and the Torture Claims Appeal Board both rejected the claims, finding the evidence incredible and state protection available with viable internal relocation – The applicants' Form 86 and supporting affirmation contained no grounds for review beyond exhibiting the Board's decision – The deputy judge refused leave, finding no error of law or procedural unfairness – On appeal, the Court of Appeal held that an appeal from refusal of leave is not the occasion to introduce new grounds, citing Re Qadir Sher, Re Rizwan and Re Ali Haider, and that allowing new grounds would circumvent the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) – The court further held that the mere existence of a pattern of human rights violations in the home country is insufficient to establish a personal risk (Re RS CACV 206/2012) – Allegations of discrimination against children born out of wedlock or women of unarranged marriage do not meet the minimum level of severity required by law (Ubamaka v Secretary for Security (2012) 15 HKCFAR 743) – The Board was entitled to reach its own conclusion on credibility and the court will not interfere with the Board's evaluation of evidence (Re Lakhwinder Singh; Re Daljit Singh) – The court found no errors of law or procedure and no reasonably arguable basis to challenge the fairness of the process – Appeal dismissed.
Legal issues: Whether new grounds not raised in the Form 86 or supporting affirmation may be raised on appeal from refusal of leave to apply for judicial review · Whether there is any reasonably arguable basis to challenge the Director's and Board's decisions on the non-refoulement claim · Whether alleged ill-treatment of children born out of wedlock or women of unarranged marriage meets the minimum level of severity required by law
Outcome: Appeal dismissed; the Court of Appeal agreed with the deputy judge that there was no prospect of success in the intended application for judicial review.
Cited by 51 cases · Cites 7 cases