Read the full judgment text of CACV 563/2018 on BabelCite. This Court of Appeal judgment was delivered on 2 April 2019 before Yuen JA, Lisa Wong J.
Administrative law – judicial review – non-refoulement claim – leave to apply for judicial review – refusal of leave – late filing of notice of appeal to Torture Claims Appeals Board – applicant's involvement in political activities and witnessing of murder by PML(N) member – death threats from associates – Pakistani national – fear of harm upon return – director's decision rejecting claim on grounds of non-disclosure, low intensity of past ill-treatment, availability of state protection, and internal relocation alternatives – Whether the Board erred in failing to consider all circumstances of the case at the third stage of the late-filing enquiry – Whether the Court of First Instance erred in re-assessing the underlying merits of the non-refoulement claim at the leave stage – Whether the Court of Appeal may consider new grounds not raised by the applicant – s 37ZT(2) and s 37ZT(3) of the Immigration Ordinance (Cap 115) – The three-stage approach in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 – The Board erred in stopping at the second stage of the enquiry without taking account of any other relevant matters of fact within its knowledge, including the merits of the underlying claim – The Court of First Instance erred in undertaking its own assessment of the underlying merits and in relying on the Director's rejection of the NRF claim to conclude the claim was without merit, since the role of the court on judicial review is not to re-assess the non-refoulement claim but to scrutinise the Board's decision for errors of law, procedural unfairness or irrationality – The Court of Appeal has a discretion, to be exercised sparingly, to allow new grounds to be canvassed in the interest of justice – Nupur Mst v Director of Immigration [2018] HKCA 524, Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766 – Appeal allowed; leave granted to apply for judicial review; originating summons to be filed within 14 days.
Legal issues: Whether the Board erred in failing to consider all circumstances of the case at the third stage of the late-filing enquiry · Whether the Court of First Instance erred in assessing the underlying merits of the non-refoulement claim at the leave stage · Whether the Court of Appeal may consider new grounds not raised by the applicant in his notice of appeal
Outcome: Appeal allowed; leave granted to the applicant to apply for judicial review.
Cited by 259 cases · Cites 3 cases