RE RAHMAN MD MOTALEB

CACV 330/2024, [2026] HKCA 602

On appeal from [2024] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 330 OF 2024

(ON APPEAL FROM HCAL 386/2024)

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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 Bruno Chan (“the Judge”) given on 25 July 2024[1] (“the Leave Decision”) refusing (i) to extend time for the applicant to apply for leave to apply for judicial review; and (ii) 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 14 July 2022 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 12 August 2015 and 24 October 2016 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim, the Board’s reasons in reaching the Board’s Decision and the procedural background to these proceedings have been set out by the Judge in the Leave Decision at [1]-[14], which will not be repeated.  

3.  After considering the documents filed by the applicant and his oral submissions made at the hearing of the leave application, the Judge refused to extend time for the applicant and dismissed the application for the reasons stated at [15]-[24] of the Leave Decision.  

Appeal to this court

4.  By a Notice of Appeal with attachments dated 8 August 2024, the applicant set out (as he did in the proceedings below) the context of the political conflict in Dhaka, Bangladesh which formed the basis of his alleged fear of harm and of returning there.  He claims that the Bangladeshi police were still a threat to him and other students who protested peacefully there, and that he would only be safe if he were allowed to stay in Hong Kong.   

5.  The contents of the applicant’s written submissions dated 14 August 2024 were in gist similar to the matters set out in his Notice of Appeal. 

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 arising from political activities or politically related conflict.  In any event, suitable options of internal relocation were available to him to lower 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 [19]-[24].  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.