Read the full judgment text of CACV 233/2018 on BabelCite. This Court of Appeal judgment was delivered on 16 October 2018 before Lam VP, Kwan JA, L Chan J.
Administrative law – judicial review – non-refoulement claim – leave to apply for judicial review – Torture Claims Appeal Board – appeal against refusal of leave – application of rigorous examination and anxious scrutiny – state acquiescence or involvement – credibility findings – allegation of past torture requirement. The applicant, a Bangladeshi national who entered Hong Kong illegally in 2009, lodged a non-refoulement/torture claim based on his fear of harm from the Awami League in Bangladesh as a supporter of the rival Bangladesh Nationalist Party. The Director of Immigration rejected the claim in respect of BOR 3, persecution, torture, and BOR 2 risks. The Torture Claims Appeal Board dismissed his appeal on 8 December 2017, finding his evidence not credible. The applicant then applied for leave to apply for judicial review by Form 86, which was refused by Deputy High Court Judge Josiah Lam on 12 June 2018. On appeal, the Court of Appeal (Lam VP, Kwan JA and L Chan J) considered the role of the Court in judicial review, reiterating that judicial review is not a further avenue of appeal, and that primary decision makers are the Director and the Board. The Court noted that an appeal against refusal of leave is not the occasion to regurgitate arguments already considered and rejected. Applying Ladd v Marshall, fresh evidence is generally not admissible unless the Ladd v Marshall criteria are met. The Court of Appeal held that the judge had applied rigorous examination and anxious scrutiny and found no reasonably arguable basis to challenge the board's findings. The applicant advanced no viable ground to reverse the judge's decision. Following Re Esmerez Maria Nieva Gelito, on the facts and the board's findings, there was no basis for the concept of state acquiescence or involvement. The board's adverse credibility finding also disposed of the applicant's contention that the board required past torture. The arguments in the appeal were largely repetitions of those rejected by the judge, which is not permissible. The Court of Appeal dismissed the appeal.
Legal issues: Whether the judge erred in refusing leave to apply for judicial review of the Torture Claims Appeal Board's decision · Whether the concept of state acquiescence or involvement applies to the present case · Whether the board misdirected itself on the requirement of past torture
Outcome: Appeal dismissed.
Cited by 659 cases · Cites 3 cases