BE v. DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

BE v. DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

The court granted leave to apply for judicial review because there are reasonably arguable grounds that the Director and the TCAB erred in law in their assessment of the Applicant's risk of persecution and the country conditions in Gambia, warranting examination at a full hearing; consequential case management directions and an anonymity order were appropriate.

Citation
[2018] HKCFI 2295
Parties
Applicant: BE; 1st Respondent: Director of Immigration; 2nd Respondent: Torture Claims Appeal Board
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 October 2018
Case Number
HCAL167/2017
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Granted and Directions Given (pre Hearing Stage)
Outcome
Leave to apply for judicial review granted; case remitted for full hearing with case management directions and anonymity order
Legal Topics
Non Refoulement, Risk Assessment of Persecution, State Protection, Sexual Orientation Persecution, Unified Screening Mechanism, Judicial Review Procedure, Anonymity Orders
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Law Asylum and Non Refoulement Law Non Refoulement Risk Assessment of Persecution State Protection +4 more

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Parties

BE

Applicant

Director of Immigration

1st Respondent

Torture Claims Appeal Board

2nd Respondent

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Granted and Directions Given (pre Hearing Stage)

Legal Issues

  1. 1 Whether the Director and TCAB applied the correct legal test in assessing the Applicant's risk of persecution on return to Gambia
  2. 2 Whether the TCAB and Director properly assessed country conditions in Gambia in light of presidential statements and unrepealed laws criminalising homosexuality
  3. 3 Whether the Applicant could reasonably be expected to avoid persecution by living discreetly

Ratio Decidendi

The court granted leave to apply for judicial review because there are reasonably arguable grounds that the Director and the TCAB erred in law in their assessment of the Applicant's risk of persecution and the country conditions in Gambia, warranting examination at a full hearing; consequential case management directions and an anonymity order were appropriate.

Court Disposition

Leave to apply for judicial review granted; case remitted for full hearing with case management directions and anonymity order

Orders

  • Leave to amend the Form 86 in the form of the draft amended Form 86 dated 6 June 2018 is granted
  • Leave to file further evidence by way of Affirmation of the Applicant dated 6 June 2018 is granted