Read the full judgment text of CACV 314/2018 on BabelCite. This Court of Appeal judgment was delivered on 26 October 2018 before Hon Lam VP and Yuen JA.
Administrative law – judicial review – leave to apply for judicial review – non-refoulement protection claim – appeal from refusal of leave – Court of Appeal's role on appeal from refusal of leave – scope for new arguments – discretion to allow new grounds in interest of justice – reasonably arguable test – Bangladesh national – risk under Hong Kong Bill of Rights articles 2 and 3 – persecution risk under article 33 of 1951 Refugee Convention – torture risk under Part VIIC of Immigration Ordinance (Cap 115) – applicant entered Hong Kong illegally in 2007 – claim assessed under Unified Screening Mechanism – Director of Immigration rejected claim – Appeal Board dismissed appeal – Campbell-Moffat J refused leave to apply for judicial review ([2018] HKCFI 1032) – whether new grounds not raised below should be entertained – general principle that Court of Appeal focuses on decision of judge below and will only reverse for error of law or if plainly wrong – new arguments fact-and-evidence sensitive not raised below generally not entertained (Re Litoun Mounsy; Re Tutul; Re Shrestha Mahesh) – Court retains discretion in interest of justice to allow new grounds (Chee Fei Ming; Ng Shek Wai) – discretion not to be exercised lightly (Yu Hung Hsua Julie; Wong Ho Tong) – applicant obtained assistance from Justice Centre after court below's decision – new grounds concerning Board's assessment of materials and failure to consider implications of alleged murder conviction in light of Re Mohammad Palash – Board appeared not to consider that complaints leading to criminal charges formed part of applicant's vendetta claim – whether intended application reasonably arguable under Po Fun Chan v Winnie Cheung test – exercise of discretion justified in particular circumstances giving due allowance for applicant's difficulties – appeal allowed – leave to apply for judicial review granted – applicant to file originating summons within 14 days.
Legal issues: Whether new grounds not raised in the court below should be entertained on appeal from refusal of leave for judicial review · Whether the intended judicial review application is reasonably arguable
Outcome: Appeal allowed; leave to apply for judicial review granted to the applicant.
Cited by 14 cases · Cites 7 cases