RE SHAFIQUL ISLAM

CACV 458/2024, [2025] HKCA 411

On Appeal From [2025] HKCA 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 458 OF 2024

(ON APPEAL FROM HCAL NO. 1856 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court) :

A.  BACKGROUND

1.  On 5 March 2025, this Court (Cheung JA and H. Au-Yeung J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Reuden Lai given on 22 October 2024 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

B.  THE PRESENT APPLICATION

2.  By a Notice of Motion filed on 21 March 2025, the applicant applied for leave to appeal to the Court of Final Appeal by contending that:

(1)  This Court has made an error in law;

(2)  The Court has ignored overwhelming evidence which is in his favour;

(3)  The Court is biased;

(4)  The Court’s decision is unfair and unreasonable.

3.  In his written submissions dated 1 April 2025, he submitted that the Adjudicator has acted in a “procedurally unfair” manner in that he has failed to assess the credibility of the applicant properly. While he has also cited a number of authorities, he has not explained why those authorities are relevant.

C.  DISCUSSION

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, Laws of Hong Kong) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  In the present application, the applicant has simply failed to identify any question of great general or public importance for the Court of Final Appeal to determine. Nor is any such question apparent to us from the matters which he has raised.

6.  Further, neither the Notice of Motion nor the written submissions identify any supposed error in our Judgment. His argument that this Court has erred in law is a bare assertion which is not particularised.

7.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

D.  DISPOSITION

8.  To conclude, the matters advanced by the applicant do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. The Notice of Motion filed on 21 March 2025 is therefore dismissed.

Applicant, unrepresented, acting in person

CACV 458/2024, [2025] HKCA 208

On Appeal From [2024] HKCFI 2953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 458 OF 2024

(ON APPEAL FROM HCAL NO. 1856 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court) :

The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Reuden Lai (‘the Judge’) of 22 October 2024 in which he refused to grant leave to him to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  The applicant entered Hong Kong in 2003. He was arrested in 2005 for overstaying and was repatriated in October 2005[1].

3.  He re-entered Hong Kong in March 2007 as a visitor under a false identity. He was arrested again in April 2009.  He was subsequently convicted of making false representation to an immigration assistant and was sentenced for 8 months’ imprisonment in May 2009[2].

4.  In November 2010, the applicant was convicted of taking up employment while under a removal order and was sentenced to 13 months’ imprisonment[3].

5.  He lodged a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in June 2009 which was dismissed by the Director of Immigration (‘the Director’) in his decision dated 15 November 2011. The applicant did not appeal against this decision[4].

6.  The applicant then lodged a non-refoulement claim on 25 June 2013.  The basis of the applicant’s claim was that he would be harmed or killed by people from the Awami League for being a member of the Bangladesh National Party.

The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 29 August 2018 (‘the Director’s Decision’).  It is apparent from the Director’s Decision that he had considered, inter alia, Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk, as well as risk of persecution.

The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 3 April 2019, the Board dismissed the applicant’s claim on 11 June 2019 (‘the Board’s Decision’).

Decision of the Judge

9.  The applicant then filed his Form 86 and supporting affirmation in July 2019 which contained various grounds of complaint against the Board. 

10.  The Judge held that:

(1)  the applicant was unable to specify in his application documents or during the hearing before him how the Board had fettered its discretion, the procedural unfairness, the procedural errors, or the failed duty of care;

(2)  the applicant’s allegation that he did not have the opportunity to make submissions before the Board was factually incorrect;

(3)  the country of origin information which the Board had taken into account was, contrary to the applicant’s suggestion, officially recognized and up-to-date;

(4)  no proper ground for the applicant’s intended challenge was made out;

(5)  The Board’s Decision is without fault.

Grounds of appeal

11.  The grounds of appeal relied on by the applicant may be summarised as follows:

(1)  He will face hardship if he is to return to his home country;

(2)   The Board relied on news not officially recognized or is simply hearsay;

(3)  The Board relied on outdated cases;

(4)  The Board lacked credible source of information resulting in it making groundless speculations.

12.  While the applicant has lodged written submissions, he has only set out a number of trite legal principles therein without explaining how those principles are relevant to the specific circumstances in his case, not to mention elaborating on the above grounds of appeal.

13.  At the appeal hearing, he added that he has formed his family here in Hong Kong with 2 children (aged 4 and 14) in the last 14 – 15 years.  Having been here for such a long time, there is nowhere that he can go if he is to leave Hong Kong. 

Our view

14.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

15.  It is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  

16.  None of the arguments raised by the applicant shows the Judge has made any aforesaid error.

17.  We therefore hold the view that the applicant’s appeal is without merits.   

18.  Accordingly, the appeal is dismissed.