Case Document

100%

CACV 74/2026, [2026] HKCA 619

On Appeal From [2026] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2026

(ON APPEAL FROM HCAL NO 1152 OF 2021)

________________________

RE:

MANDOL POBITRO

Applicant

________________________

Before:

Hon Au JA and Keith Yeung J in Court

Date of Hearing:	16 March 2026
Date of Judgment:	10 April 2026

________________________

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) Lewis Law (“the Judge”) dated 16 January 2026 ([2026] HKCFI 172) (“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 3 June 2021 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 20 December 2018, refusing his non-refoulement claim.

2.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 [1] - [3] of the Leave Decision. The Judge has set out his reasons for refusing the Leave Application at [4] - [5] of the Leave Decision. We will not repeat the details herein.

3.By the Notice of Appeal filed on 28 January 2026, the applicant asserted:

“1. Failure to consider the country of origin condition that the authority of my country would not able to protect me from my enemies.

2. Failure to consider my risk under BOR 2 and BOR 3 risk that I would be harm even killed by my enemies upon refoulement.

3. Failure to proper assessment my fear that my enemies are more powerful and situation into my country has been changed since 2024 I would be face risk as a minority in current situation in my country.” (sic)

4.The applicant lodged written submissions on 16 February 2026. In those submissions, he complained that the decision makers had failed to take into account or put proper weight on relevant considerations. He also complained that they did not observe his fear properly, erred in law in applying non-refoulement principles, had been acting unfair procedurally, irrational, erred in fact and misapplied the burden and standard of proof. He also alleged that the decision makers had failed to consider country information or changed circumstances as well as principles of proportionality.

5.We heard the appeal on 16 March 2026. A Bengalese interpreter was also present to provide language assistance. The applicant further submitted at the hearing that he and his family are in a country (Bangladesh) where the majority of the people there is Muslim. They tortured and treated him and his family badly. His family members have told him that he should not return to the country for at least the coming two years.

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 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.

9.In any event, there is no substance in his allegations. Nowhere in his Notice of Appeal or submissions did the applicant identify any error committed by the Judge with specific particulars. 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. We see no basis to disturb the Leave Decision.

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