RE KHAN AMMAD

CACV 420/2026, [2026] HKCA 1170

On Appeal From [2026] HKCFI 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 420 OF 2026

(ON APPEAL FROM HCAL NO 92 OF 2021)

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J U D G M E N T

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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)  YW Hew (“the Judge”)  dated 16 April 2026 ([2026] HKCFI 1961)  (“the Leave Decision”)  dismissing 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 15 January 2021 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”)  dated 23 April 2020, refusing his non-refoulement claim.

2.  The applicant is a national of Pakistan.  The basis of his non-refoulement claim is, if refouled, he would be harmed or killed by Jhanzaib, a relative and fellow villager.  His 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 [1] - [3] of the Leave Decision.  The Judge has set out his reasons for refusing the Leave Application at [7] - [12] of the Leave Decision.  We will not repeat the details herein.

3.  By the Notice of Appeal filed on 24 April 2026, the applicant claimed:

“I am disagree with decision maker authorities, decision maker not give me justice. They are not proper investigation in my claim. They make my decision same like Torture Claims Appeal Board / Director of Immigration. Sir my life have so danger in my Home Country please grant my case for safety of my life.” (sic)

4.  In support of his appeal, the applicant also lodged his written submissions on 29 May 2026.  In those submissions, he claimed that the Judge erred in failing to apply the principles of irrationality, procedural unfairness, and unreasonableness and that the Judge failed to analyse his claims properly.  The applicant alleged that his problems remain severe in his home country and his enemies are still looking for him and he will face hardship upon refoulement. He further complained that the Board failed to give him sufficient chance to arrange relevant evidence and irrationally failed to analyse whether there was a consistent pattern of gross and mass violation of human rights in his country and whether state protection existed.

5.  We heard the appeal on 15 June 2026.  An Urdu interpreter was also present to provide language assistance. During the hearing, the applicant complained that the Judge erred in stating that he is an Indian citizen when he is a Pakistani citizen.  He claimed that he could not be refouled to India as India is “the enemy country”.  He further stated that he could not be refouled to Pakistan as his disputes with his enemy remained.

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.  At the outset,  the assertions made by the applicant are mostly 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].  On this basis alone, his appeal must be dismissed.

9.  In any event, we see no merit in his contentions. Nowhere in his Notice of Appeal did the applicant identify any error committed by the Judge with specific particulars.  His assertions against the Board are general and bare allegations unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The Board gave the applicant ample opportunities, both orally and in writing, to present his case.[1]  The Judge had also thoroughly analysed the applicant’s case and given detailed reasons for finding the applicant’s intended judicial review not reasonably arguable.  We see no merit in the applicant’s contentions.

10.  As to his assertions that the Judge mistakenly stated in the Leave Decision that the applicant is an Indian instead of a Pakistani national, we are of the view that objectively read in its proper context, such is plainly a typographical error.  From the Leave Decision, the Judge correctly set out and considered the factual basis of the applicant’s non-refoulment claim as well as the Board’s Decision.  Both the Director and the Board had also properly considered the applicant as a Pakistani national and thoroughly assessed his non-refoulement claim and subsequent appeal on the basis that his country of origin is Pakistan.  We agree with the Judge that there is no public law error in the Board’s Decision: see [10] of the Leave Decision.  In any event, when the applicant’s non-refoulement claim is not substantiated on final determination, under the Immigration Ordinance (Cap 115)[2], the applicant will be refouled by the Director to his own country of origin, that is, Pakistan, given his Pakistani nationality as noted by the Board: see the Board’s Decision at [148], [154], [158] and [160].  We see no substance in the applicant’s complaints and there is no basis for this court to interfere with the Leave Decision.

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