RE IQBAL SHAHID

CACV 393/2023, [2026] HKCA 1308

On appeal from [2023] HKCFI 3014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 393 OF 2023

(ON APPEAL FROM HCAL 773/2019)

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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 20 November 2023[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review[2]. 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 February 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 30 January 2015 and 18 May 2017 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 and summarised by the Judge in the Leave Decision at [1]-[8], 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 [9]-[14] of the Leave Decision.  

Appeal to this court

4.  By a Notice of Appeal dated 30 November 2023, the applicant contended, inter alia, that the Judge had failed to take “such argument” into account (without elaborating on what such argument might be), that the Board failed to make “sufficient [enquiries]” (without specifying what such enquiries might be) and that the “gravity of [his] circumstances [have not] been weighed or realised by both putative Respondents while considering [his] non-refoulement claim”.

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged his written submissions late (by 4 days), on 18 December 2023.  Given the relatively short delay, we are prepared to nonetheless consider those submissions, which merely referred, inter alia, to the well-established principles in 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 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.

9.  In the present case, the Board found that members of the Hakin Din family, with whom the applicant had had conflict in the past, have relocated either elsewhere in the country or overseas and thus would not continue to pose threats to him.  Moreover, the Board considered there to be adequate state protection and suitable options of internal relocation 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 [8]-[14]. 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.  There was also 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 in the consideration of his leave application by the Judge and/or in the processing of his non-refoulement 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.