Re Mohammed Shamim
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CACV 647/2026, [2026] HKCA 1491 On appeal from[2026] HKCFI 3148 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 647 OF 2026 (ON APPEAL FROM HCAL 1001/2022) -----------------------------------
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___________________ J U D G M E N T ___________________ Hon Barma JA (giving the Judgment of the Court): 1.This is an appeal against the decision of Deputy High Court Judge Levy (“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 5 September 2022 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 20 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 therein[2] as well as by the Judge in the Leave Decision at [3], which will not be repeated. 3.After considering the documents filed by the applicant and the oral submissions he made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [5]-[11] of the Leave Decision. Appeal to this court 4.In a Notice of Appeal dated 16 June 2026, the applicant stated inter alia that there was a “failure to conduct sufficient inquiry into the country of origin that the authority of [his] country would not [be] able to protect [him] from enemy”, and that his claims under the BOR2 and BOR3 risks have not been properly assessed. 5.In his written submissions dated 30 June 2026, the applicant submitted, inter alia, that the Judge applied an incorrect test for non‑refoulement, or “misstated the standard of risk required to establish protection”, and wrongly treated the Board’s findings on credibility as “conclusively determinative” of his claim. 6.We heard the appeal on 6 August 2026, at which the applicant appeared in person. At the hearing, the applicant submitted that there were continuing political problems in his home country. 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 on the evidence that the applicant’s moneylender, Anil Kumar, has never attacked him in the past and thus does not pose a real threat of harming him. In any event, suitable options of internal location are 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 [5]-[11]. 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.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.
The applicant, unrepresented, appearing in person [2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001001_2022_files/the_Board's_Decision.pdf |