Read the full judgment text of CACV 486/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 January 2022 before Chu JA, Barma JA and Au JA.
Civil procedure – judicial review – leave to apply for judicial review – non-refoulement protection claim – Torture Claims Appeal Board – appeal from Deputy High Court Judge's refusal of leave – duty of joint endeavour – Hong Kong Bill of Rights – BOR 2 (right to life) – BOR 3 (prohibition of torture or cruel, inhuman or degrading treatment) – cumulative risk – Indian national who overstayed her visitor visa in Hong Kong and claimed non-refoulement protection – her principal claim was based on her conversion from Sikhism to Christianity and threats from villagers – she also mentioned having worked as a police informant for the Special Narcotic Cell in Amritsar – additional grounds included forced marriage by parents and an attempted kidnap – she elected not to testify before the Adjudicator – Whether the Adjudicator discharged the duty of joint endeavour by not probing into her role as a police informant and not warning her of the consequences of electing not to testify – Whether the Adjudicator erred in law in holding that BOR 2 risk is only engaged by risk of capital punishment by the country of return – Whether the Adjudicator should have considered cumulative risk – Held: Ground 1 (duty of joint endeavour) is reasonably arguable on a refined basis – the Adjudicator should have clearly informed the applicant of the issues troubling him and the implications of those issues for her case – the failure to do so rendered the high standards of fairness arguably unmet, particularly regarding the inconsistencies in her claims about her parents and the late-raised attempted kidnap – Ground 2 is not reasonably arguable in the factual context – although the Adjudicator's statement of law on BOR 2 was wrong, the error would not vitiate the decision because the Adjudicator had already rejected the underlying risk of harm from her Christian faith and from her parents' desire for her to marry a Sikh – Ground 3 is not reasonably arguable – the Adjudicator rejected the applicant's case on the grounds put forward, so there was no cumulative risk to consider – Appeal allowed in part – Judge's order set aside – Leave to apply for judicial review granted limited to the basis of Ground 1 (as refined) – No order as to costs of this appeal – Applicant's own costs to be subject of Legal Aid taxation
Legal issues: Failure to discharge duty of joint endeavour (Ground 1) · Error of law on scope of BOR 2 (Ground 2) · Failure to consider cumulative risk (Ground 3)
Outcome: Appeal allowed in part; leave to apply for judicial review granted limited to the basis of Ground 1 (as refined); Grounds 2 and 3 refused.
Cited by 66 cases · Cites 3 cases