RE MAHMOOD TARIQ

CACV 61/2026, [2026] HKCA 617

On Appeal From [2026] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 61 OF 2026

(ON APPEAL FROM HCAL NO 1103 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 13 January 2026 ([2026] HKCFI 269)  (“the Leave Decision”)  refusing to grant extension of time and dismissing his application for leave to apply for judicial review (“the Leave Application”)  against the decision of the Director of Immigration dated 25 May 2016, refusing to reopen his non-refoulement claim.

2.  The applicant’s background and the procedural history leading to his application for leave to apply for judicial review was set out by the Judge at [1] - [4] of the Leave Decision.  In essence, the applicant failed to return his non-refoulement claim form as required under section 37Y(2)  of the Immigration Ordinance (Cap 115).  Subsequently, he requested to reopen his claim, stating that he has been married in Hong Kong with a daughter and if he returns to Pakistan he would be killed by his enemies.  By a Notice of Decision dated 25 May 2016 (“the Director’s Decision”), the Director of Immigration (“the Director”)  refused his request to reopen his claim.  No appeal was lodged against the Director’s Decision to the Torture Claims Appeal Board (“the Board”).  On 6 August 2021, the applicant filed an application for leave to apply for judicial review against the Director Decision more than five years late.[1]

3.  After considering his application on paper, the Judge dismissed his application and set out his reasons for refusal at [5] - [6] of the Leave Decision:

“5.  The Applicant never brought any appeal to the Torture Claims Appeal Board (‘Board’)  against the Director’s refusal to re-open his claim under Section 37ZR (a)  of the Immigration Ordinance as so advised in the decision if he was aggrieved by the Director’s refusal, but instead more than 5 years later on 6 August 2021 he filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in his Form or supporting affirmation of the same date to which he just attached a copy of the Director’s decision.

6.  As such, and in the absence of any appeal first brought by the Applicant to the Board against the Director’s refusal to re-open his claim in pursuance of Section 37ZR (a)  of the Immigration Ordinance as part of the 2-tier screening of his claim by both the Director and the Board under the Unified Screening Mechanism (‘USM’)  in place for the processing of all non-refoulement claims since 3 March 2014, I do not find any legal or procedural basis for him to bring his present leave application for judicial review of the Director’s decision, and accordingly dismiss his application.”

4.  By the Notice of Appeal filed on 26 January 2026, the applicant claimed that the Director was procedurally unfair and unreasonable in failing to consider state acquiescence and that “the Board” had relied on some web news not recognised by the authorities without proper investigation to his claims.  He also submitted, without leave of the court, various new documents including a Hong Kong Marriage Certificate; Hong Kong Identity Cards of his wife and daughter; Hong Kong Birth Certificates of his daughter and his son; a referral letter dated 11 September 2025 issued by the Department of Health concerning his wife and an Immunisation Record of his son (“the New Evidence”)  to support his appeal.

5.  The applicant lodged written submissions on 27 February 2026.  In those submissions, he claimed that he was deprived of the right to make full grounds of appeal owing to the lack of language and legal assistance, which amounted to procedural unfairness.

6.  We heard the appeal on 16 March 2026.  A Punjabi interpreter was also present to provide language assistance.  During the hearing, the applicant confirmed that he had nothing to add to his written materials.

DISCUSSION

7.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

8.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

9.  At the outset, the applicant’s allegations are new and not raised before the Judge.  He fails to give any reason as to why these grounds are only raised on appeal and not in the court below.  It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].  The appeal can be dismissed on this basis alone.

10.  In any event, nowhere in his Notice of Appeal or submissions did the applicant identify any error committed by the Judge. His assertions are all general, bare and vague allegations unsupported by specific particulars or evidence.  General and bare assertions of his fear if refouled do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Clearly, his assertions do not constitute viable grounds of appeal and must fail. 

11.  As to his complaints regarding the lack of language and legal assistance, we noted that all of the court documents filed by the applicant in this appeal as well as before the Judge are in English.  Clearly, the applicant is able to obtain assistance in English.  It is also trite that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [19] - [20].

12.  Moreover, his complaints against the Board are also factually wrong, as the applicant did not lodge any appeal against the Director’s Decision to the Board.  In this respect, we fully agree with the Judge’s observations that as the applicant did not lodge any appeal to the Board against the Director’s Decision pursuant to section 37ZR(a)  of the Immigration Ordinance, there is no legal or procedural basis for him to bring his present application for judicial review against the Director’s Decision.  The applicant’s complaints have no merit.

13.  For completeness, regarding the New Evidence, the applicant also failed to explain how those documents were relevant to his case and why they were adduced in such late stage.  In any event, he failed to explain how these documents satisfy the conditions under Ladd v Marshall [1954] 1 WLR 1489[2].

14.  For the above reasons, we agree with the Judge’s reasons in dismissing the applicant’s application.  We see no basis to disturb the Leave Decision.

15.  Accordingly, the applicant’s appeal against the Leave Decision has no merit and is dismissed.