RE MENDAME ERICK

CACV 449/2024, [2026] HKCA 575

On appeal from [2024] HKCFI 2559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 449 OF 2024

(ON APPEAL FROM HCAL 2037/2019)

-----------------------------------

-----------------------------------

___________________

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 KW Lung (“the Judge”) given on 15 October 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 17 June 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 13 August 2018 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 by the Judge in the Leave Decision at [3]-[7] and [10]-[13], which will not be repeated.  

3.  The applicant asked for an oral hearing for his leave application and one was fixed for him.  However, he was absent on the day of the hearing.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [16]-[22] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 25 October 2024, the applicant stated that he “cannot go back to [his] country” because his life was still in danger.  

5.  By written submissions dated 1 November 2024, the applicant merely repeated the background to his claim and the dangers he allegedly faced should he be refouled.  

6.  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

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 Board considered there to be material inconsistencies and discrepancies in the applicant’s evidence, and it doubted the credibility of his claim of 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 [10]-[22].  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.