RE ASHMIK

CACV 657/2026, [2026] HKCA 1493

On appeal from [2026] HKCFI 3355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 657 OF 2026

(ON APPEAL FROM HCAL 1585/2025)

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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 KW Lung (“the Judge”) given on 10 June 2026[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 30 May 2025 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 4 March 2025 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 therein[2] as well as by the Judge in the Leave Decision at [7]-[9], which will not be repeated. 

3.  The applicant did not request for an oral hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [12]-[17] of the Leave Decision.  

Appeal to this court

4.  In a Notice of Appeal dated 18 June 2026, the applicant stated that he would face hardship in his home country upon refoulement, and that the Board relied on questionable sources of news as well as “some cases” which are outdated.

5.  In his written submissions dated 3 July 2026, the applicant referred, inter alia, to the well-established principles in ST v Director of Immigration (sic)[3] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

6.  The applicant was absent at the hearing of the appeal on 6 August 2026.  We will therefore determine the appeal on paper and on the basis of the matters set out in the documents lodged 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.

9.  In the present case, the Board found that there were material inconsistencies and discrepancies in material parts of the applicant’s evidence which fatally undermined his claimed fear or risk of harm.  In any event, the Board took the view that suitable options of internal relocation and adequate state protection were available to the applicant in order to minimise the risk of harm, if any.  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 [7]-[17].  We see no basis to interfere.

10.  The applicant has accordingly 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.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied by the Judge or by the Board in the determination of his claim.

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.  

[1]  [2026] HKCFI 3355

[2]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001585_2025_files/the_Board's_Decision.pdf

[3]  The correct citation should be ST v Betty Kwan.