ABDALLA GAMALELDIN MOHAMED AGIBA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 468/2026, [2026] HKCA 1179

On Appeal From [2026] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2026

(ON APPEAL FROM HCAL NO 1278 OF 2021)

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J U D G M E N T

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Hon Mimmie Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 29 April 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 24 August 2021 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 20 May 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 [9], which will not be repeated.

3.  After considering the documents filed by the applicant as well as the oral submissions he made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [17]-[37] of the Leave Decision.

Appeal to this court

4.  In a Notice of Appeal dated 8 May 2026, the applicant stated inter alia (without elaboration or particulars) that he disagreed with the Leave Decision as it was unfair and that his case was not determined fairly.

5.  By written submissions dated 18 June 2026, the applicant essentially repeated the complaints in his Notice of Appeal, and additionally submitted that he was prejudiced in the proceedings below by reason of a lack of language and legal assistance. 

6.  We heard the appeal on 2 July 2026, at which the applicant appeared in person. The applicant submitted that the “biggest danger” he faced upon refoulement would be his arrest by the government.

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.

9.  In the present case, the Board, after considering all relevant evidence adduced by the applicant, rejected the core of the factual matrix on which his primary alleged risk of harm was based, namely that he would be subject to harm at the hands of a “Mr E”, his alleged creditor, upon refoulement. The Board specifically rejected the applicant’s contentions, inter alia, that he owed any money to Mr E, that Mr E had made threats against him or his family, or that the applicant was wanted by the Egyptian authorities for being a member or supporter of the Muslim Brotherhood, such that there is any basis for the applicant’s alleged fear of harm. 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 [17]-[37]. We see no basis to interfere.

10.  The applicant has accordingly 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.  We are unpersuaded by the applicant’s complaint of prejudice caused by his lack of legal representation. As this Court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178. In this connection, we note that the applicant was legally represented at the hearing before the Board.

12.  We are equally unpersuaded by the applicant’s complaint as to the apparent lack of language assistance, as he was clearly able (whether by himself or with the assistance of others) to lodge comprehensible English documents and submissions with the Court and in the processing of his claim below.

13.  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.