RE NEWAR SMITA

CACV 374/2024, [2026] HKCA 864

On appeal from [2024] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 374 OF 2024

(ON APPEAL FROM HCAL 583/2022)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 3 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 8 June 2022 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 September 2021 rejecting the applicant’s non-refoulement claim.

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

3.  After considering the documents filed by the applicant as well as her oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [9]-[14] of the Leave Decision.  

Appeal to this court

4.  By a Notice of Appeal dated 16 September 2024, the applicant stated that she was still afraid to return to India by reason of the threats from her husband.  

5.  For completeness, the applicant wrote to the court on 16 September 2024, informing that she was being detained in Nei Kwu Correctional Institution.

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

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 material inconsistencies and discrepancies in the applicant’s evidence on her claimed fear of harm, and thus rejected the existence of her perceived threats as they were incredible.  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 [8]-[14].  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.