Read the full judgment text of CACV 30/2019 on BabelCite. This Court of Appeal judgment was delivered on 9 May 2019 before Wally Yeung Ag CJHC, Jeremy Poon JA, Derek Pang JA.
Administrative law – judicial review – non-refoulement claim – leave to apply for judicial review – Torture Claims Appeal Board – Director of Immigration – Bangladesh national – alleged involvement in bomb attacks on political enemies on instructions of uncle holding senior position in Awami League – whether the Board erred in rejecting the claim – whether the applicant was fleeing to Hong Kong to avoid criminal liability – whether new arguments not raised below can be entertained on appeal – whether lack of language assistance rendered Board proceedings unfair – whether lack of legal representation at appeal stage rendered proceedings unfair – whether appeal bundle was served in sufficient time – standard of 'rigorous examination and anxious scrutiny' – whether the applicant was a credible witness – overstay since 29 March 2005 – claim lodged 6 January 2006 – decision of Director 25 January 2017 – Board decision 15 March 2018 – Form 86 filed 20 March 2018 – leave refused 8 January 2019 – applicant failed to lodge skeleton submissions – appeal considered on paper – whether Board had proper basis for finding and conclusion – whether Board's decision was Wednesbury unreasonable – whether there was procedural unfairness – right to free legal representation not absolute at all stages of proceedings – applicant assisted by qualified interpreters and Duty Lawyer Service at earlier stages – appeal bundle served 7 calendar days (6 working days) before hearing in compliance with 5-working-day requirement – bundle mostly contained documents already seen by applicant – applicant did not request adjournment – applicant was not a credible witness – applicant only tried to escape punishment by Bangladeshi authority – no evidence of severe pain and suffering in Bangladesh – court will not usurp role of primary decision-makers – assessment of evidence and COI materials primarily within province of Board – Court of Appeal will not entertain new fact-and-evidence sensitive arguments not raised at first instance – appeal dismissed.
Legal issues: Whether the Board erred in rejecting the non-refoulement claim · Whether new arguments not raised below can be entertained on appeal · Whether lack of language assistance and legal representation rendered the Board proceedings unfair · Whether the appeal bundle was served in sufficient time before the Board hearing
Outcome: Appeal dismissed; the applicant has no prospect of success in the intended application for judicial review.
Cited by 31 cases · Cites 10 cases