RE LAMA PATMA GHYAMCHHO

CACV 404/2024, [2026] HKCA 862

On appeal from [2024] HKCFI 2447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2024

(ON APPEAL FROM HCAL 1610/2020)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 17 September 2024[1] (“the Leave Decision”)  refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 20 July 2020 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 21 April 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[2] ground.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision may be found at [2]-[12] and [17] of the Leave Decision, which will not be repeated.

3.  After considering the documents filed by the applicant as well as his oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [19]-[25] of the Leave Decision.  

Appeal to this court

4.  By a Notice of Appeal dated 26 September 2024, the applicant contended that the Leave Decision was reached unfairly and “without giving [him] the opportunity to clarify [his] case”.  The applicant also relied on further matters as stated in a handwritten document attached to the Notice of Appeal, which were essentially his contentions that he lacked “legal information” and “knowledge” in the proceedings below, the situation in his country was still dangerous and that his father had passed away.  

5.  For completeness, on 26 September 2024, the applicant wrote to the court stating that he would be unable to attend the appeal hearing due to his detention at Tai Tam Gap Correctional Institution.

6.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions.  He is thus deemed to have abandoned his right to rely on written submissions in the appeal.  

7.  In any event, the applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

8.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  

9.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

10.  In the present case, notwithstanding an invitation by the Director of Immigration (issued by letter to the applicant on 28 March 2017), the applicant did not submit any additional information in respect of his claim under the BOR 2 risk ground.  The Director and the Board were thus left with the information and evidence provided by the applicant in support of his claim based on other applicable grounds in their assessment of his claim under the BOR 2 risk.  In considering the applicant’s claim based on the BOR 2 risk ground in these circumstances, the Board concluded that there was no genuine and substantial risk of irreparable harm to be suffered by the applicant should he be refouled, and that his claim under the BOR 2 risk was unsubstantiated.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [22]-[24].  We see no basis to interfere.  

11.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

12.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.