Read the full judgment text of CACV 402/2018 on BabelCite. This Court of Appeal judgment was delivered on 21 January 2019 before Hon Lam VP, Barma and Zervos JJA.
Administrative law – non-refoulement – judicial review – leave to apply – appeal from refusal of leave – Hong Kong Bill of Rights Articles 2 and 3 – Part VIIC of the Immigration Ordinance (Cap 115) – 1951 Convention relating to the Status of Refugees Article 33 – enhanced Wednesbury standard – Nepalese national refused permission to land on 7 December 2013 – torture and non-refoulement claims treated as unified screening mechanism claim from 3 March 2014 – applicant alleged fear of Maoist retaliation as former Maoist soldier (2003–2005) who left the group – applicant made no complaint to Nepalese police or authorities – Director of Immigration assessed BOR 2 risk, BOR 3 risk, persecution risk and torture risk and determined risks against the applicant – Torture Claims Appeal Board dismissed appeal on 20 March 2017 finding evidence neither credible nor reliable and that state protection and internal relocation were available – applicant applied for leave to apply for judicial review on 21 July 2017 – Deputy High Court Judge Woodcock refused leave by CALL-1 Form dated 8 August 2018 – applicant appealed – whether the judge erred in concluding there was no failure to adhere to a high standard of fairness because the applicant was not legally represented before the Board – whether the judge erred in finding no merit in complaints regarding the extended concept of state acquiescence and the availability of state protection – Court of Appeal reiterated that judicial review is not a further avenue of appeal and that assessment of evidence, COI materials, state protection and internal relocation are within the province of the Director and the Board – Court will only intervene on public law grounds – concept of state acquiescence (active or passive) has no application where applicant has not reported the alleged threat to the state authorities – applicant failed to show he applied to the Duty Lawyer Scheme – lack of legal representation before the Board does not per se establish procedural unfairness – applicant failed to pinpoint any errors in the judge's decision – appeal dismissed.
Legal issues: Whether the judge erred in concluding there was no failure to adhere to a high standard of fairness (legal representation before the Board) · Whether the judge erred in finding no merits in the complaints about state acquiescence and state protection
Outcome: Appeal dismissed; leave to apply for judicial review refused.
Cited by 604 cases · Cites 9 cases