Read the full judgment text of CACV 382/2020 on BabelCite. This Court of Appeal judgment was delivered on 3 March 2022 before Yuen JA and G Lam JA.
Administrative law – judicial review – non-refoulement claims – appeal from refusal of leave to apply for judicial review – standard of review – fresh evidence on appeal – Ladd v Marshall criteria – child claimants – separate consideration of children's claims – lack of legal representation – RHC Order 80 rule 2 – high standard of fairness – 1st Applicant (Sri Lankan) and 2nd Applicant (Indonesian) overstayed in Hong Kong, married and had two children in Hong Kong – 1st Applicant claimed fear of harm from Sri Lankan politicians Rishad Bathiudeen and Noordeen Mashoor's supporters – 2nd Applicant claimed fear of harm from her parents and an arranged marriage partner – whether Judge erred in refusing leave to apply for judicial review of Board decision dismissing appeals – held: role of Court in judicial review is not to provide further avenue of appeal; assessment of evidence and credibility is primarily for the Board – repetition of rejected factual assertions is not a public law ground – whether police report (not previously produced) should be admitted as fresh evidence on appeal – held: Ladd v Marshall criteria not met; first criterion (reasonable diligence) and third criterion (presumed credibility) not satisfied; self-serving report contradicted by transcript of alleged interrogation – whether Board separately and properly considered the 3rd and 4th Applicants' claims as required by Fabio Arlyn Timogan – held: Board did separately assess the children's claims, considering mixed race and religious heritage, and concluded no real risk of harm in either country – whether lack of legal representation for child claimants before the Board rendered proceedings unfair – held: no, where Board achieved the high standard of fairness and no minor-specific grounds were left unadvanced; non-compliance with RHC Order 80 rule 2 treated as mere irregularity following Zoraydah, Jasvir Singh and Paglingayen Rosalyn Ringor – appeal by 1st and 2nd Applicants dismissed – appeal by 3rd and 4th Applicants dismissed – no order as to costs, save that 3rd and 4th Applicants' costs to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Refusal of leave to apply for judicial review for 1st and 2nd Applicants · Admission of fresh police report evidence on appeal · Separate consideration of child claimants' non-refoulement claims · Effect of lack of legal representation for child claimants at Board hearing
Outcome: Appeals of all four Applicants dismissed; refusal of leave to apply for judicial review upheld
Cited by 13 cases · Cites 16 cases