Read the full judgment text of CACV 310/2019 on BabelCite. This Court of Appeal judgment was delivered on 2 December 2019 before Lam VP, Lisa Wong and S T Poon JJ.
Administrative law – judicial review – non-refoulement claim – leave to apply for judicial review – refusal by Court of First Instance – appeal to Court of Appeal – Bangladesh national – overstayed in Hong Kong – breach of condition of stay and taking up employment – sentenced to three months' imprisonment – claim of fear of political persecution by Awami League due to family membership in Bangladesh Nationalist Party – convictions in absence in Bangladesh including attempted murder and a 10-year sentence – assessed under unified screening mechanism (USM) – claim rejected by Director of Immigration – appeal dismissed by Torture Claims Appeal Board / Non-refoulement Claims Petition Office on grounds including delay in seeking protection, no ulterior political motive, viable internal relocation, and no substantial risk of harm – leave to apply for judicial review refused by Deputy High Court Judge K W Lung – whether Judge erred in not addressing Form 86 grounds – whether Board and Judge failed to consider human rights implications of absence convictions under Re Mohammad Palash – Court of Appeal sets out three general principles for non-refoulement appeals: (i) judicial review is not a further avenue of appeal and assessment of evidence, COI materials, risk of harm, state protection, and internal relocation is primarily within the Board's province, with intervention only for errors of law, procedural unfairness, or irrationality; (ii) appeal against refusal of leave is not for regurgitating arguments and the Court of Appeal will only reverse if the judge made an error of law or was plainly wrong; (iii) the Court of Appeal only examines the judge's decision in light of the grounds advanced and if no viable ground is put forward to reverse the judge, the appeal should be dismissed – applicant appearing in person – Judge gave adequate reasons addressing supporting affirmation grounds – Form 86 grounds found devoid of merit – general assertions without specific particulars cannot constitute valid grounds under Re Mizan Sikder – ground concerning outdated COI factually incorrect as Board referred to COI from 2016, 2017 and 2018 – neither Board nor Judge addressed Mohammad Palash implications of convictions in absence – Court adjourns part-heard and directs Director (as putative interested party) to lodge bundle of documents on the court cases and convictions in Bangladesh which were before the Board and lodge written submissions on the Re Mohammad Palash aspect within 28 days from handing down – applicant to lodge written submissions within 21 days thereafter – court to consider additional materials and notify parties if a further oral hearing is needed or of the date of handing down of judgment if the matter can be decided on the papers.
Legal issues: General principles for appeals against refusal of leave in non-refoulement judicial review cases · Whether the Judge erred in refusing leave to apply for judicial review · Whether human rights implications of convictions in absence (Re Mohammad Palash) needed to be addressed
Outcome: Appeal adjourned part-heard; further directions made for the Director to lodge additional documents and written submissions on the Re Mohammad Palash issue
Cited by 173 cases · Cites 11 cases