Read the full judgment text of CACV 556/2021 on BabelCite. This Court of Appeal judgment was delivered on 13 June 2022 before Hon Chu JA and S T Poon J.
Administrative law – judicial review – non-refoulement claim – leave to apply for judicial review – Torture Claims Appeal Board – procedural fairness – Browne v Dunn – refusal to answer questions – whether warning required – scope of supervisory review – Director's decision superseded by Board. The applicant, a Filipino national who overstayed in Hong Kong in September 2017, lodged a non-refoulement claim based on threats from his creditor over an unpaid loan, the creditor's police connections, and his involvement in drug trafficking in the Philippines. The Director of Immigration rejected the claim on 25 May 2018 on BOR 2, BOR 3, persecution and torture risk grounds, finding no real risk of harm, that state protection was available, and that internal relocation was an option. The Torture Claims Appeal Board dismissed his appeal on 14 September 2018 after he refused to answer further questions at the oral hearing, citing his inability to estimate time needed to obtain a business permit and that his mind was not clear. The Board found material inconsistencies in his account of the loan, threats, injuries and drug trafficking, and held that even on the highest view of his evidence, he failed to establish a non-refoulement claim. The applicant filed for leave to apply for judicial review, which was refused on the papers by Deputy High Court Judge K.W. Lung on 3 December 2021. Whether the Board's failure to warn the applicant that his case was bound to fail unless he continued to answer questions amounted to procedural unfairness – held, no: the Court of Appeal in Re Masud MD did not lay down a blanket rule requiring a warning, and on the facts the applicant's refusal was not fatal to his claim because the Board independently concluded that, even accepting his evidence, the threshold for a non-refoulement claim was not met. Whether the Director's decision could be challenged by judicial review once the Board had disposed of the appeal – held, no, following Re Moshin Ali: the Director's decision is superseded by the Board's decision. Whether the intended judicial review had a realistic prospect of success – held, no: the Court agreed with the judge that there was no error of law, procedural unfairness or irrationality in the Board's decision, the assessment of evidence, state protection and internal relocation was for the Board, and the applicant advanced no specific grounds in his Notice of Appeal. The new evidence (a threatening letter) first mentioned at the hearing could not be received as the court exercises only a supervisory role. Appeal dismissed.
Legal issues: Whether absence of Browne v Dunn warning to applicant who refused to answer questions rendered Board decision procedurally unfair · Whether applicant may judicially review the Director's decision after pursuing an appeal to the Board · Whether intended judicial review had a realistic prospect of success warranting leave
Outcome: Appeal dismissed; leave to apply for judicial review of the Board's decision refused.
Cited by 17 cases · Cites 11 cases