RE DAS KAMAL KISNA

CACV 470/2024, [2025] HKCA 212

On Appeal From [2024] HKCFI 2834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 470 OF 2024

(ON APPEAL FROM HCAL NO. 2028 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal by the applicant against the Judgment of Deputy High Court Judge KW Lung (‘the Judge’) of 5 November 2024 (‘the Judgment’) by which he refused to grant the applicant leave to apply for judicial review.

2.  This appeal was originally scheduled to be heard on 25 February 2025.  However, despite the directions from the Court to the applicant dated 31 December 2024 (‘the Directions’), the applicant failed to lodge written submission by the stipulated time.  Accordingly, pursuant to paragraph 4 of the Directions, the hearing of the appeal was vacated and the Court will now deal with this appeal on paper. 

2)  Background

3.  The applicant is a national of Bangladesh.  On 27 October 2015, the applicant was arrested by police for being an illegal immigrant. He then made a non-refoulement claim on 6 November 2015.

4.  The basis of the applicant’s claim is that he would be harmed or killed by the Awami League for being a member of the Bangladesh Nationalist Party.  He also feared harm from Muslims because he is a Hindu.

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 22 September 2017 (‘the Director’s Decision’).  It is apparent from the said decision that the Director had considered Bill of Rights Article 2 (right to life) risk, Bill of Rights Article 3 (torture/inhuman treatment) risk, as well as risks under other statutory and convention against torture and persecution^[1] .

4)  The Board’s Decision

6.  The applicant then appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[2].  After a hearing held on 14 May 2018, the Board dismissed the applicant’s appeal on 26 July 2018 (‘the Board’s Decision’).

7.  The Board’s findings have been summarized in the Judgment at [11] to [14].

5)  The Judgment

8.  In a gist, the Judge held that the applicant did not raise any specific reason to challenge the Board’s Decision, and that there is no reason that the Court should interfere with the Board’s finding of facts.

6)  Grounds of appeal

9.  In his Notice of Appeal, the applicant stated that:-

“[…] the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

7)   Our view

10.  It is trite that the Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

11.  An appeal against refusal of leave to apply for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.      It is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  

12.  We are of the view that none of the arguments raised by the applicant shows the Judge has made any error referred to above.  The applicant’s appeal is without merits. 

14.  Accordingly, the appeal is dismissed.