Read the full judgment text of CACV 194/2018 on BabelCite. This Court of Appeal judgment was delivered on 6 September 2018 before Lam VP, Yuen JA, Kwan JA.
Administrative law – judicial review – non-refoulement claim – appeal from refusal of leave – application of enhanced Wednesbury scrutiny – role of Court of Appeal – skeleton submissions – unless order – abandonment of oral hearing – Nepal – political violence – Nepali Congress supporter – Maoist threat – whether the judge erred in refusing leave to apply for judicial review where applicant advanced no substantive grounds in Form 86 or supporting affirmation – whether failure to lodge skeleton submissions despite unless order constitutes abandonment of right to oral hearing – whether the Board misdirected itself on state acquiescence, COI assessment, and standard of proof – whether applicant could rely on materials not produced before the Board – whether high standard of fairness confers absolute right to free legal representation at all stages – general propositions that Court in judicial review is not further avenue of appeal, that primary decision-makers are the Director and Board, and that Court will not intervene absent errors of law, procedural unfairness or irrationality – appeal against refusal of leave is not occasion to regurgitate arguments rejected below – Court of Appeal only reverses if judge made errors of law, failed to take account of relevant matters, or was plainly wrong – fresh evidence subject to Ladd v Marshall requirements – new fact-and-evidence sensitive arguments not raised below will not generally be entertained – allowing reargument would flout Order 53 rule 4(1) stringent time limits – applicant, a Nepali national who overstayed as transit visitor, alleged Maoist persecution as Nepali Congress supporter and student union president – Director rejected BOR 3, Refugee Convention article 33, Cap 115 Part VIIC and BOR 2 risks – Board found no minimum level of severity, no official-capacity conduct by kidnappers, and available state protection – judge's refusal of leave upheld on ground application not reasonably arguable under Peter Po Fun Chan v Winnie CW Cheung – applicant's complaint that judge gave inadequate reasons plainly unmeritorious in light of lack of substantive grounds – complaint regarding state acquiescence wholly misconceived as not raised below – Exhibit A arguments were generic assertions seen in other cases, not addressing applicant's specific facts – belated additional COI materials not produced before Board and in any event outdated – appeal dismissed.
Legal issues: Effect of failure to lodge skeleton submissions under unless order · Standard of review of judge's refusal of leave in non-refoulement judicial review · Whether the Board erred in its assessment of the non-refoulement claim
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 10 cases · Cites 29 cases