Read the full judgment text of CACV 304/2019 on BabelCite. This Court of Appeal judgment was delivered on 13 December 2019 before Kwan VP, S T Poon J.
Administrative and immigration law – non-refoulement claim – judicial review – leave to apply – appeal from Court of First Instance – Pakistani national alleging harm by Sunni Muslims over religious dispute – application rejected by Director of Immigration on torture, BOR 2, BOR 3 and persecution grounds – Board dismissed appeal by way of rehearing – judge refused leave to apply for judicial review – whether grounds concerning lack of language and legal assistance, an alleged comment by the judge, absence of further appeal avenues, determination on paper, and challenge to the Director's assessment of state protection are meritorious – whether grounds 1 and 2 (lack of language and legal assistance) are admissible or meritorious – held: no; grounds were not raised below, interpreter and duty lawyer services were provided, and there is no absolute right to free legal representation at all stages – whether ground 3 (judge's alleged comment on procedural irregularity) is made out – held: no; the comment was not in fact made – whether ground 4 (no further avenue to challenge credibility-based decisions is procedurally unfair) is made out – held: no; rehearing before the Board and judicial review of the Board's decision satisfy procedural fairness – whether ground 5 (no oral hearing of leave application) is made out – held: no; the applicant did not request an oral hearing in his Form 86 or affirmation and Order 53 rule 3(3) of the Rules of the High Court (Cap 4A) permits determination on paper – whether ground 6 (challenge to the Director's assessment of state protection) is admissible – held: no; the point was not raised below, no leave was sought to raise it as a new argument, and the Director's decision is not amenable to judicial review once the Board appeal has been pursued – appeal dismissed for lack of merit and no prospect of success in the intended application for judicial review.
Legal issues: Whether the judge erred by failing to consider the lack of language and legal assistance · Whether the judge made the comment attributed to him on procedural irregularity · Whether the absence of further avenues to challenge credibility-based decisions is procedurally unfair · Whether the leave application should have been determined at an oral hearing · Whether the Director's assessment of state protection can be challenged on appeal to the Court of Appeal
Outcome: Appeal dismissed; the applicant's appeal against the judge's refusal of leave to apply for judicial review is dismissed, and there is no prospect of success in the intended application for judicial review.
Cited by 36 cases · Cites 6 cases