RE MEEGODAGE DON VIYANI HYJINUS CALISTUS alias MEEGODAGE DON VIYANI HY JINIUS CALISTUS

CACV 17/2024, [2026] HKCA 1306

On appeal from [2024] HKCFI 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2024

(ON APPEAL FROM HCAL 1588/2019)

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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 3 January 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 31 May 2019 (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 August 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[2].

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 [5]-[23], 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[3], the persecution risk[4] and the torture risk[5] (and the appeal therefrom) was rejected by the Director and the Board respectively on 27 August 2015 and 22 February 2017 (respectively “the Director’s and the Board’s 1^st Decisions”).

4.  The applicant did not request for an oral hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [24]-[38] of the Leave Decision.  

Appeal to this court

5.  By a Notice of Appeal dated 17 January 2024, the applicant stated:

“The High Court refused my leave to apply for judicial review. I have some objection. The Court did not find any error or proceding (sic). I will show some of error.”

6.  In his written submissions filed on 31 January 2024, the applicant repeated the factual background to his claim and the fears he allegedly faced should he be refouled.  He claimed, without particulars or elaboration, that “all my points which I raised the court did not consider at all”.

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 facts 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 [25]-[38]. 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.