Read the full judgment text of CACV 183/2020 on BabelCite. This Court of Appeal judgment was delivered on 27 January 2021 before Au JA, G Lam J.
Administrative law – judicial review – non-refoulement claims – appeal from refusal of leave to apply for judicial review – standard of review of decisions of Torture Claims Appeal Board – enhanced scrutiny – assessment of evidence, risk of harm, state protection and internal relocation primarily within province of Board – Court of Appeal will not intervene absent errors of law, procedural unfairness or irrationality – inter-caste and inter-religious marriage in India – claim by Indian family fleeing alleged threats from wife's family after deliberate traffic collision in April 2016 – issue of whether determination of leave application without oral hearing was procedurally proper – issue of whether complaint of lack of language assistance was substantiated – issue of whether minor children's non-refoulement claims must be considered separately from parents' claims having regard to their personal circumstances – O.53 r.3(3) RHC permits determination of leave application without hearing where no hearing is requested – high standard of fairness does not require interpretation services to be available at any time applicant desires – Cucan Fatimah v TCAB; Re Gurung Sagar applied – children's claims must be assessed separately, with ill-treatment not reaching threshold for adults potentially qualifying for children – Fabio Arlyn Timogan; Re Jasvir Singh applied – non-compliance with O.80 r.2 RHC next friend requirement may be treated as mere irregularity under O.2 r.1 RHC – Zoraydah; Ng Hong Ki applied – Deputy Judge's finding that Board erred in treating April 2016 traffic incident as chance meeting agreed – Board's failure to separately assess feasibility of internal relocation and impact on minor applicants rendered their claim reasonably arguable – 1st and 2nd applicants' appeal dismissed – 3rd and 4th applicants granted leave to apply for judicial review – Official Solicitor to act as next friend – no order as to costs.
Legal issues: Determination of leave application for judicial review without an oral hearing · Complaint of lack of language assistance at the Board hearing · Separate consideration of minor children's non-refoulement claims
Outcome: Appeal by 1st and 2nd applicants dismissed; appeal by 3rd and 4th applicants (minors) allowed and leave to apply for judicial review granted; non-compliance with O.80 r.2 RHC treated as mere irregularity; 3rd and 4th applicants to be represented by the Official Solicitor as next friend; no order as to costs.
Cited by 36 cases · Cites 9 cases