Read the full judgment text of CACV 240/2019 on BabelCite. This Court of Appeal judgment was delivered on 9 September 2019 before Lam VP, Bharwaney J.
Civil procedure – judicial review – non-refoulement claim – appeal against refusal of leave to apply for judicial review – role of Court of Appeal – enhanced standard of scrutiny in non-refoulement cases – whether Court of Appeal will usurp role of Board – whether Court of Appeal will reassess claim afresh – Indonesian national – domestic helper in Hong Kong since 2003 – permission to remain expired 18 December 2014 – employment contract prematurely terminated 3 May 2014 – overstayed – surrendered to Immigration Department 1 December 2015 – lodged non-refoulement claim by written submissions 22, 23 and 28 February 2017 – claim based on fear of harm or death from husband and husband's creditors – applicant acted as guarantor for husband's loan – Director of Immigration rejected claim by notice of decision 27 February 2018 – assessed BOR 2 risk under article 2 of the Hong Kong Bill of Rights – BOR 3 risk under article 3 of the Hong Kong Bill of Rights – persecution risk under article 33 of the 1951 Convention relating to the Status of Refugees – torture risk under Part VIIC of the Immigration Ordinance (Cap 115) – Torture Claims Appeal Board held oral hearing 7 June 2018 – Board dismissed appeal 24 August 2018 with adverse credibility finding – sound reasons for rejection of evidence in paragraphs [41] to [69] of Board's decision – applicant filed Form 86 on 11 September 2018 seeking leave to apply for judicial review – Judge refused leave on 23 May 2019 relying on Re Moshsin Ali – whether Board acted in procedurally unfair manner – held no – applicant did not raise complaint with Board and could not identify further evidence she wished considered – whether applicant had viable ground to appeal refusal of leave – held no – applicant did not pinpoint any error on part of Judge – notice of appeal sought reassessment of claim afresh which is not a viable course in appeal against refusal of leave – section 37ZT not relevant – appeal dismissed – leave to apply for judicial review refused.
Legal issues: Procedural fairness of the Board's decision · Viable ground of appeal against refusal of leave to apply for judicial review
Outcome: Appeal dismissed.
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