RE SHARIF MUHAMMAD

CACV 1180/2025, [2026] HKCA 439

On Appeal From [2025] HKCFI 5361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1180 OF 2025

(ON APPEAL FROM HCAL NO 1705 OF 2020)

________________________

________________________

________________________

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 (Non-refoulement Claims)  Teresa Wu (“the Judge”)  dated 5 December 2025 ([2025] HKCFI 5361)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review (“the Leave Application”)  against  the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 14 August 2020 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 20 August 2018 (“the Director’s Decision”), refusing his non-refoulement claim.

2.  The appeal was listed to be heard on 2 February 2026.  By the directions made by the Registrar of Civil Appeals on 12 December 2025, which were received by the applicant in person on the same day, he was directed to lodge two sets of skeleton argument on or before 19 January 2026, failing which, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  However, he did not lodge any skeleton argument in support of his appeal.

3.  As the applicant failed to lodge any skeleton argument by the stipulated time, he was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 20 January 2026.

4.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [2] of the Leave Decision.  The Judge also sets out in detail her reasons for refusing the Leave Application: see [3] - [7] of the Leave Decision.  We will not repeat the details herein.

5.  By the Notice of Appeal filed on 12 December 2025, the applicant essentially complained that the Judge applied the wrong approach in substantives deciding his case instead of considering whether his case was “reasonably arguable”.  He also stated that he did raise specific concerns in his Form 86 and affirmation but as he was not a lawyer, he had tried his best to explain his situation in the best way as he could.  He complained that the Board’s credibility finding against him was unfair and not properly explained.  He further asserted that the Board ignored important reasons as to why he did not report the alleged threats to the police and failed to fairly assess his fear or how the situation in his village had affected him.  The applicant also claimed that the Board’s finding that he could internally relocate was reached without proper consideration and analysis.  The Board also failed to explain in detail the conclusion that there was no real risk of torture or ill-treatment.

DISCUSSION

6.  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].

7.  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)].

8.  In our view, the allegations made by the applicant are wholly without substance.

9.  First, his complaints against the Judge are factually erroneous.  As correctly noted by the Judge at [4] of the Leave Decision, the applicant did not raise any ground of judicial review in either his Form 86 or his supporting affirmation.  The applicant merely exhibited copies of the Board’s Decision, the Director’s Decision and various documents from his hearing bundle before the Board to his supporting affirmation without any explanation or grounds in support of his application for leave to apply for judicial review.

10.  It is trite that it is a mandatory requirement for the applicant to state the relief sought and the grounds on which it is sought in the Form 86.  The Judge cannot be expected to plough through the affirmation and evidence filed by the applicant in support of the leave application in order to find out the relief sought or grounds on which it is sought which was not raised or particularised by the applicant to the standard required by the law.  Although the applicant is not legally represented, he is still under a duty to comply with the legal requirements as well as the rules of the Court.  See 鍾宋旺 v 中華人民共和國香港特別行政區行政長官辦公室 [2022] HKCA 1684 at [6], Ho Ka Man v The Privacy Commissioner for Personal Data [2018] HKCFI 814 at [11] and Tong Wai-Yee Winnie v Secretary for Education & Another [2024] HKCA 881 at [101].

11.  Accordingly, the Judge was clearly correct to find at [6] of the Leave Decision that the applicant failed to demonstrate any basis or ground to challenge the legality, rationality, or fairness of the Board’s Decision. It must also be open for the Judge to find that the applicant’s intended judicial review was not reasonably arguable with any realistic prospect of success, and to dismiss his application: see [3] of the Leave Decision.  There is no error in the Judge’s approach or decision.

12.  As to the applicant’s remaining complaints which are all directed at the Board, they are new grounds not raised before the Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

13.  In any event, the Judge had thoroughly considered the Board’s Decision in detail at [5] - [6] of the Leave Decision and we see no error or basis to disturb the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.