Read the full judgment text of CACV 520/2019 on BabelCite. This Court of Appeal judgment was delivered on 8 July 2021 before Barma JA, Au JA, G Lam JA.
Civil appeal – judicial review – non-refoulement claim – Torture Claims Appeal Board – applicant from Pakistan – illegal entry in 2007 – claim of political persecution by rival party – Director of Immigration's decisions of 26 February 2016 and 16 June 2017 rejecting the claim – appeal to the Board – hearing on 15 May 2018 – applicant produced sick leave certificate for headache and applied for adjournment – Board refused adjournment, finding the application a stalling tactic, and proceeded without oral evidence – written decision of 22 November 2018 dismissing the appeal on all four non-refoulement grounds – whether general credibility could be the starting point of a decision on credibility – whether the Board should assess the substantive propositions of fact and make findings on the applicant's case in the round – whether the Board gave sufficient reasons for its conclusion that the applicant had failed to establish a real risk of harm – whether procedural fairness required the Board to put to the applicant its intention to treat the adjournment application as damaging his credibility under section 37ZD(1) of the Immigration Ordinance (Cap 115) – section 37ZD(1) of the Immigration Ordinance (Cap 115) – section 8 articles 2 and 3 of the Hong Kong Bill of Rights Ordinance (Cap 383) – article 33 of the 1951 Convention relating to the Status of Refugees – whether the Board's inability to test the applicant's credibility through oral evidence could justify dismissal of the claim without assessment of the primary facts – duty of the decision-maker to make findings on the applicant's relevant factual assertions – whether the fact of legal representation obviated the duty of the Board to give warning of an adverse inference – Re Hidayah [2018] HKCA 595 followed – SM (section 8: judge's process) Iran [2005] UKIAT 00116 and TK v Michael Jenkins & anor [2013] 1 HKC 526 applied – JT (Cameroon) v Secretary of State for the Home Department [2009] 1 WLR 1411 cited on the global assessment of credibility – appeal allowed – leave to apply for judicial review granted on Grounds 1, 2 and 4 of the Amended Form 86 – Ground 3 abandoned – no order as to costs except that the applicant's own costs are to be taxed in accordance with the Legal Aid Regulations – applicant and his legal representatives directed to prosecute the application for judicial review with despatch.
Legal issues: Whether Board erred in rejecting claim based on general credibility without testing through oral examination · Whether the Board gave adequate reasons for dismissing the claim · Whether the Board erred in relying on conduct as damaging credibility under s.37ZD without prior notice
Outcome: Appeal allowed; leave to apply for judicial review granted on Grounds 1, 2 and 4 of the Amended Form 86. Ground 3 of the proposed judicial review was abandoned by the applicant at the appeal hearing.
Cited by 17 cases · Cites 3 cases