RE KAMAL MOHAMMAD MOSTAFA

CACV 303/2025, [2026] HKCA 1390

On appeal from [2025] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2025

(ON APPEAL FROM HCAL 2793 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Levy (“the Judge”) given on 8 May 2025[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 12 September 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 14 December 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 [4]-[9], which will not be repeated.

3.  Pursuant to the applicant’s request, a hearing for the leave application was fixed on 10 April 2025, with the notice of hearing sent to the applicant on 17 March 2025 at his last known address (which was not returned undelivered in the post). Notwithstanding this, the applicant was absent at the hearing. The Judge accordingly proceeded to determine the applicant’s leave application on paper (see [2]-[3], the Leave Decision).

4.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [11]-[16] of the Leave Decision.

Appeal to this Court

5.  In the Notice of Appeal filed on 19 May 2025, the applicant stated that he disagreed with the Judge’s decision, and that:

“The High Court did not find any error of proceeding but I can show many error. Give me a chance to show the error of the adjudicator. My apply sould (sic) not be refused.”

6.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge skeleton submissions with the court 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

7.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1. The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process. The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants. The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions. Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

8.  The hearing date on 16 December 2025 was therefore vacated and the applicant was debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

9.  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.

10.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.

11.  In the present case, the Board rejected the applicant’s version of material events (on which his non-refoulement claim was based) by reason of significant inconsistencies in his evidence (see the Leave Decision, [13]). As to the applicant’s complaints relating to the Board’s alleged violations of procedural fairness, the Judge noted that the applicant was assisted by an interpreter at the hearing before the Board, and that there was no indication from the Board’s Decision that the applicant encountered language difficulties or had required more time to prepare his case (see Leave Decision at [12]). These issues were sufficiently canvassed and considered by the Judge at the Leave Decision at [11] to [15]. We have also subjected the Board’s Decision to anxious scrutiny, and we see no basis to interfere with the Judge’s findings and conclusions.

12.  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.

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.