Read the full judgment text of CACV 597/2018 on BabelCite. This Court of Appeal judgment was delivered on 25 June 2019 before Yeung Ag CJHC and Poon JA.
Administrative law – non-refoulement claim – judicial review – leave to apply – appeal from refusal of leave – Nepalese national – illegal entry – claim based on fear of harm from employer over alleged theft of gold – claim rejected by Director of Immigration and Torture Claims Appeal Board – Board found applicant not credible and claims implausible and fabricated – four grounds of challenge: lack of legal representation, lack of language assistance, lack of fair hearing (Director absent from Board hearing), wrongful exercise of case management power regarding Country of Origin Information – first issue: whether the Director's decision is amenable to judicial review once an appeal to the Board has been pursued – held no, following Re Moshsin Ali [2018] HKCA 549, the Director's decision is not susceptible to judicial review once the Board route is taken – second issue: whether lack of language assistance amounts to procedural unfairness – held no, the high standard of fairness does not require interpretation at any time the applicant desires and the applicant had access to language assistance including via a friend who helped prepare English court documents – third issue: whether the Board's adverse credibility finding is reviewable – held no, assessment of evidence and risk is primarily for the Director and the Board, and the court will not interfere absent procedural impropriety or error of law, neither of which was shown – 'rigorous examination and anxious scrutiny' standard from Secretary for Security v Prabakar (2004) 7 HKCFAR 187 applied – fourth issue: whether leave should be granted – held no, complaints not reasonably arguable, no realistic prospects of success – appeal dismissed, leave to apply for judicial review refused.
Legal issues: Whether the Director's decision is amenable to judicial review once an appeal to the Board has been pursued · Whether lack of language assistance renders the non-refoulement proceedings unfair · Whether the Board's adverse credibility finding is reviewable on judicial review · Whether leave to apply for judicial review should be granted
Outcome: Appeal dismissed; leave to apply for judicial review refused.
Cited by 188 cases · Cites 10 cases