Azubuine Solomon Kingsley v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 231/2021

[2022] HKCA 860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2021

(ON APPEAL FROM HCAL NO 2865 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  15 July 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 21 December 2021, this Court gave its decision (“the CA Decision”) dismissing the Applicant’s application for leave to adduce new evidence in support of his appeal against the order of Deputy High Court Judge P Li dated 27 April 2021 refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 21 September 2018.

2.The Applicant now applies by Notice of Motion dated 18 January 2022 for leave to appeal the CA Decision to the Court of Final Appeal. In the Notice of Motion, 4 questions said to be questions of great general or public importance are raised, namely:

(1)  In respect of the admission of evidence on appeal, should the governing principles differ, and if so how, where: (a) the evidence relates to the ability of a non-refoulement claimant to give oral evidence in support of his claim, and (b) the primary decision-maker had rejected the claim on credibility grounds?

(2)  Given that the underlying appeal concerns the life, limb and fundamental rights of the Applicant not to be subjected to torture, CIDPT, risk to life and/or risk of persecution, did the Court rigorously examine the application to adduce new evidence so as to ensure the high standards of fairness were met, including:

i  Giving the Applicant every reasonable opportunity to establish his claim;

ii  Appreciating the difficulties of proof faced by the Applicant and not put him to strict proof where reasonable justifications have been provided; and

iii  Understanding that country of origin information at the time of the incidents underlying the Applicant’s claim as well as at present are usually relevant?

(3)  How should the residual discretion to admit new evidence on appeal be exercised where the evidence relates to a non-refoulement claimant’s ability to give oral evidence before the primary decision maker, and where the primary decision maker has rejected the claim on credibility grounds?

(4)  Given that the new evidence in question are of significance to the Applicant’s appeal grounds, without which the grounds may not be adequately ventilated and the merits of the appeal may not be properly assessed, did the Court properly exercise its residual discretion to allow the application to adduce new evidence in exceptional circumstances as required by the interests of interest?

3.The Applicant has not filed any submissions in support of the application contrary to the directions of the Registrar of Civil Appeals dated 31 January 2022 and 8 March 2022.

4.The basic facts of this case, and the reasons for refusing the application to adduce new evidence on appeal, are set out in the CA Decision and will not be repeated here, save to point out that in relation to the two categories of proposed new evidence (namely, medical evidence and COI), we rejected the application not only because the first Ladd v Marshall condition was not satisfied (ie the proposed evidence could have been obtained with reasonable diligence for use in the court below), but also because the second Ladd v Marshall condition was not satisfied (ie the proposed evidence is not such that it would probably have an important influence on the result of the case).

5.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of, inter alia, the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Appeal the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.In respect of Question (1), we can see no good or sufficient reason why the well-established Ladd v Marshall conditions should be inapplicable, or should be modified, in appeals concerning non-refoulement cases generally or the category of non-refoulement cases referred to therein, or on the specific facts of the present case.

7.In respect of Question (2), it is facts specific, and not a question of great general or public importance.

8.In respect of Question (3), the exercise of the residual discretion to admit new evidence on appeal where the Ladd v Marshall conditions are not satisfied is facts specific, and we see no reason why the residual discretion should be exercised in the present case (see §24 of the CA Decision).

9.The same comment applies to Question (4), which is facts specific.

10.In so far as the application for leave to appeal is based on the “or otherwise” limb, it is the well-settled practice of this Court to defer the matter for consideration by the Appeal Committee of the Court of Final Appeal.

11.For the above reasons, the application for leave to appeal is refused, and the Notice of Motion is dismissed.

Patricia Ho & Associates, for the Applicant