RE AJIM MIAH

CACV 195/2025, [2026] HKCA 1309

On appeal from [2025] HKCFI 1256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 195 OF 2025

(ON APPEAL FROM HCAL 375/2021)

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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 To (“the Judge”) given on 1 April 2025[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review[2]. 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 30 September 2020 (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 June 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[3].

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s 2^nd Decision have been set out therein and summarised by the Judge in the Leave Decision at [7]-[14], which will not be repeated.

3.  Prior to the Director’s and the Board’s 2^nd Decisions, the applicant’s non-refoulement claim based on the BOR 3 risk[4], the persecution risk[5] and the torture risk[6] (and the appeal therefrom) was rejected by the Director and the Board respectively on 17 September 2014 and 23 July 2015 (respectively “the Director’s and the Board’s 1^st Decisions”).

4.  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 [15]-[26] of the Leave Decision.

Appeal to this court

5.  By a Notice of Appeal dated 14 April 2025, the applicant inter alia repeated the factual background to his claim, repeated the fears he may face should he be refouled, and that the Board made an “error of law” by not considering “the state risk of Bangladesh and current violent (sic) in Bangladesh”.

6.  In his written submissions dated 16 April 2025, the applicant repeated the factual background to his claim and the fears he allegedly faced should he be refouled.  He claimed that the Board had wrongly considered “about future risk of harm or ill-treatment” if he were refouled to his home country.

7.  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, the Board found that the applicant’s claim and evidence relied upon before the director in respect of the BOR 2 risk were essentially the same as those he relied upon for his claim in respect of the other applicable grounds for non-refoulement.  Accordingly, for the reasons given by Director and the Board in their 1^st Decisions, the Board, by its 2^nd Decision, concluded that the applicant had been unable to meet the threshold required to establish his claim based on the BOR 2 risk.  These were findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [13]-[26].  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 2^nd Decision, or how such 2^nd 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.