RE MEHMOOD ARSHAD

CACV 404/2026, [2026] HKCA 1166

On Appeal From [2026] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2026

(ON APPEAL FROM HCAL NO 1114 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)  Lewis Law (“the Judge”)  dated 8 April 2026 ([2026] HKCFI 1922)  (“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 18 June 2021 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”)  dated 29 October 2018, 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 the people associated with Awami National Party.  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 [2] of the Leave Decision. The Judge has set out his reasons for refusing the Leave Application at [3] - [5] of the Leave Decision.  We will not repeat the details herein.

3.  By the Notice of Appeal filed on 21 April 2026, the applicant claimed:

“I am disagree with the decision maker authorities, decision maker not give me justice, they not properly investigation in my claim. decision maker give me same decision like Torture Claims Appeal Board / Director of Immigration. Sir my life have still threating in my home country. Please help me to grant my case for safety of my life.” (sic)

4.  In support of his appeal, the applicant also lodged written submissions on 5 May 2026.  In those submissions, he reiterated the factual history of his non-refoulement claim and claimed that the Director had been unfair and unreasonable and failed to consider state protection and had thus erred in law.  He also claimed that the Board failed to make sufficient inquiry before finalising its determination and failed to give sufficient chance to him to arrange for relevant evidence to be provided.

5.  Pursuant to the directions of the Registrar of Civil Appeals made on 21 April 2026 (“the Directions”), the hearing of his appeal was scheduled to be heard before this court on 15 June 2026.  Paragraph 12 of the Directions also states that if the applicant fails to attend the oral hearing, he will be deemed to have waived his right to the requested oral hearing, and the court will proceed to consider the appeal on its merits on the basis of the materials before it.  The applicant confirmed in writing his receipt of the Directions on 21 April 2026.

6.  However, he failed to attend the oral hearing on 15 June 2026.  In the circumstances, pursuant to paragraph 12 of the Directions, we will proceed to consider and determine his appeal on paper.

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 assertions made by the applicant are mainly 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.

10.  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 and the Director are general and bare allegations unsupported by particulars or evidence.  In any event, the Board gave the applicant ample opportunities, both orally and in writing, to present his case[1]. Both the Board and the Judge had thoroughly considered the applicant’s case and given detailed reasons for their respective decisions.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  We see no merit in the applicant’s assertions and there is no basis to interfere with the Leave Decision.

11.  For the above reasons, the applicant’s appeal against the Leave Decision is hereby dismissed.