RE MALLA MD ALAMIN

CACV 130/2026, [2026] HKCA 677

On appeal from [2026] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 130 OF 2026

(ON APPEAL FROM HCAL 1336/2021)

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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 (Non-refoulement Claims)  Lewis Law (“the Judge”)  given on 4 February 2026[1] (“the Leave Decision”)  refusing to grant leave for the applicant to apply for judicial review. The intended judicial review[2] was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 12 July 2021 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 30 November 2020 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein[3] as well as by the Judge in the Leave Decision at [1] and [7]-[8], which will not be repeated.

3.  After considering the documents filed by the applicant as well as the applicant’s oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [5]-[11] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 13 February 2026, the applicant contended that the Judge and/or the Board failed to consider (i)  that his “problem” was not a personal dispute but was a “political dispute”; (ii)  the “Country of Origin condition” in his country, namely that the authorities there would not be able to protect him from his enemies; (iii)  his claim under the BOR 2 and 3 risks.

5.  By written submissions dated 27 February 2026, the applicant repeated the matters stated in the Notice of Appeal, as well as making numerous broadbrush, unparticularised assertions such as (i)  the Board acting outside of the scope of the “Immigration Ordinance/USM” by misinterpreting statutory thresholds or applying an incorrect legal test (with no elaboration whatsoever); and (ii)  there was an “inadequate opportunity to present evidence, failure to consider submissions or late reliance on new material without notice” (without specifying what such evidence, submissions or “new material” might be).

6.  We heard the appeal on 1 April 2026, at which the applicant appeared in person.  At the hearing, the applicant had nothing to add to the matters already stated in the papers filed for the appeal.  

Discussion

7.  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.

8.  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].

9.  In the present case, the applicant claimed that if refouled, he (being a member of the Bangladesh Nationalist Party)  would be harmed or killed by members of the Awami League (“AL”)  by reason of his refusal to join the AL.  By reason of material inconsistencies in his evidence, the Board held that the applicant was not a truthful witness and found that he was unable to establish a real risk of harm on account of his political activities or associations (Board’s Decision, [48]-[49] and [61]-[67]).  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 [4]-[11].  Further, as the Judge pointed out, the Board did consider the BOR 2 risk, contrary to the applicant’s case that this had not been considered.  The applicant did not mention the BOR 3 risk in his Form 86, so this did not arise for consideration before the Judge.  We see no basis to interfere.  

10.  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.

11.  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.