RE SHIKDAR BABU MD PARVEJ

CACV 274/2025, [2026] HKCA 861

On appeal from [2025] HKCFI 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2025

(ON APPEAL FROM HCAL 1965/2023)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 28 April 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 5 October 2023 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 3 February 2021 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 [2]-[16], which will not be repeated.

3.  After considering the documents filed by the applicant as well as his oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [17]-[21] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 9 May 2025, the applicant stated that the Judge erred in refusing to grant leave to him, and that he reserves the right to amend the grounds of appeal “in due course”.

5.  By written submissions dated 23 May 2025, the applicant made various complaints against the Board which are essentially directed at the Board’s findings of fact and the findings against him on credibility.

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 all directed at the decision of the Board. In any event they 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 concluded that the factual bases of the applicant’s primary claim of a risk of harm from members of the Awami League, as well as from one of its leaders Mohsin Bhuiyan, have been fabricated and that he was not a truthful witness (see Board’s Decision at [91]-[93]).  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 [20]-[21].  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.  More importantly he has not suggested any way in which the Judge erred.

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.