RE MUHAMMAD NAVEED

CACV 70/2026, [2026] HKCA 623

On Appeal From [2026] HKCFI 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2026

(ON APPEAL FROM HCAL NO 1775 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 15 January 2026 ([2026] HKCFI 260)  (“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 2 September 2020 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”)  dated 27 May 2020 (“the Director’s Decision”), refusing his subsequent non-refoulement claim.[1]

2.  The appeal was listed to be heard on 16 March 2026.  By the directions made by the Registrar of Civil Appeals on 27 January 2026 (“the Directions”), 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 2 March 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 3 March 2026.

4.  Subsequently, on 3 March 2026, the applicant lodged written submissions in support of his appeal.

5.  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 has also set out in detail her reasons for refusing the Leave Application at [3] - [11] of the Leave Decision.  We will not repeat the details herein.

6.  By the Notice of Appeal filed on 27 January 2026, the applicant complained about his lack of language and legal assistance.  He also complained that the Board had erred in law by using unrealistic and overly strict memory tests, applying an over high standard of proof requiring detailed and exact evidence, and made speculative findings by failing to assess risk and motives of his political enemies.  He also asserted that the Board had failed to conduct a proper assessment of state involvement or protection, and that various attacks in 2018 and the resulting consequences (including his father’s heart attack)  were new and serious events and the Board failed to properly analyse these and thus misapplied the subsequent claim framework.

7.  As mentioned above, the applicant lodged written submissions on 3 March 2026.  In those submissions, he again reiterated his complaints against the Board in that the Board used strict memory testing as a major credibility tool but stress and fear had affected his memory.  He further complained that the Board erred in finding that there was no motive for his alleged political enemies to harm him.  He also complained that the Board used broad political assumptions and strong negative language. He then claimed that the Judge had erred in failing to acknowledge an arguable legal error in the Board’s approach to motive and risk assessment, and its irrationality and irrelevant reasoning.  Lastly, he complained that he lacked language and legal assistance.

DISCUSSION

8.  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].

9.  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)].

10.  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.

11.  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 or give any ground in support of his appeal.  His assertions are mainly directed that the Board’s Decision, and are in any event general and bare allegations unsupported by specific particulars or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  They do not constitute viable grounds of appeal.

12.  In this respect, we also fully agree with and adopt the Judge’s reasons as set out at [9] of the Leave Decision:

“9. These factual findings lay exclusively within the province of the Board. The evaluation of the risk of harm was, in substance, a matter for the Board, which was entitled to undertake that assessment on the basis of the evidence available. In doing so, the Board correctly set out the burden and standard of proof under the law, applied the relevant legal principles, and observed a high standard of fairness. It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524).”

13.  The Judge had thoroughly considered the applicant’s case and the Board Decision and correctly found no error of law, procedural unfairness, or irrationality on the part of the Board.  It is unhelpful for the applicant to merely disagree with the Judge’s reasons without condescending upon particulars as to how the Judge had erred as a matter of law in the Leave Decision.

14.  As to his complaints regarding the lack of language and legal assistance, we note 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 and we see no prejudice suffered by the applicant.  On the evidence, we also see no complaint made by the applicant before the Board or the Judge as to the lack of legal or language assistance.  In any event, 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].

15.  For the above reasons, the applicant’s contentions are clearly without substance.  We see no basis to interfere with the Leave Decision.

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