Read the full judgment text of HCAL 1076/2018 on BabelCite. This Court of First Instance judgment was delivered on 13 December 2018 before Deputy High Court Judge K.W. Lung.
Administrative law – judicial review – leave – non-refoulement claim – Torture Claims Appeal Board / Non-refoulement Claims Petition Office – supervisory role of the Board – rehearing – grounds of appeal – whether the Adjudicator erred in disregarding the applicant's grounds of appeal and conducting a wholesale rehearing afresh – Bangladeshi national claiming risk of harm from Awami League and criminal prosecution by Bangladeshi police – Director rejected claim as not substantiated – Board confirmed Director's decision – applicant's appeal hearing held on 20 February 2018 – Adjudicator relied on AM v Director of Immigration HCAL 102/2012 and treated appeal as a rehearing afresh – Adjudicator found inconsistencies between screening interview report and hearing evidence and disbelieved the applicant – Immigration Ordinance Cap 115 Schedule 1A section 18 grants the Board power to consider same evidence as before immigration officer and, in defined circumstances, new evidence – function of the Appeal Board under section 37ZQ(2) is to hear and determine appeals under section 37ZR – Court's role in judicial review is supervisory, not appellate, applying 'rigorous examination and anxious scrutiny' standard from Prabakar – Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 confirmed supervisory role – Court of Appeal in Ali Haider CACV8/2018 held that evaluation of evidence is for the Director and Board, not the court – Adjudicator's wholesale rehearing without considering the 13 grounds of appeal submitted by applicant may render the unified screening mechanism otiose and relinquish the Board's supervisory role – Adjudicator failed to give reasons for disregarding screening evidence – leave to apply for judicial review granted.
Legal issues: Whether the Adjudicator/Board erred in disregarding the grounds of appeal and conducting a wholesale rehearing
Outcome: Leave to apply for judicial review granted.
Cited by 21 cases · Cites 3 cases