RE LAKHWINDER SINGH alias LAKHWINDER SINGH KULWANT SINGH

CACV 1218/2025, [2026] HKCA 669

On appeal from [2025] HKCFI 5884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1218 OF 2025

(ON APPEAL FROM HCAL 1195 OF 2025)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 9 December 2025[1] (“the Leave Decision”, as contained in “the CALL-1 Form” dated the same)  refusing to grant leave for the applicant to apply for judicial review.

2.  The applicant, by a Form 86 filed on 22 May 2025 (“the Form 86”), sought to apply for leave to apply for judicial review (“the Leave Application”)  against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 14 May 2025 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 January 2025[2] rejecting the applicant’s non-refoulement claim.

3.  In his affirmation in support of the Form 86 also filed on 22 May 2025 (“the Affirmation”), the applicant, apart from setting out his grounds for judicial review, requested that an oral hearing be fixed for the determination of the Leave Application (the Affirmation, [27]).  

The applicant’s right to an oral hearing

4.  O.53 r.3 of the Rules of the High Court (Cap 4A)  (“the Rules”)  sets out, inter alia, the applicable procedure for the determination of the Leave Application.  Rule 3(3)  provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.  Despite the applicant’s request for an oral hearing, according to the court’s records and contrary to the Judge’s mistaken belief (at [2] of the CALL-1 Form), the Leave Application had not been listed or fixed for hearing.

6.  Upon this mistaken belief, the Judge, presumably invoking his discretionary and case management powers under O.1A r.1(b), O.1B r.1(1)  and O.53 r.3(3)  of the Rules, proceeded to determine the Leave Application on the papers.

7.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3)  and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the Leave Application on the papers.  It is therefore arguable that the Judge had erred in law and fact in determining the Leave Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; Re Pervin Jahanara [2023] HKCA 1064 at [20].

8.  It therefore follows that in exercising his discretion in refusing leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the Leave Decision on an erroneous basis in law.

9.  In the premises, notwithstanding that the hearing of the present appeal (originally fixed on 10 February 2026)  has been vacated by reason of the applicant’s failure to file written submissions, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that the hearing be restored on 1 April 2026 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present appeal, as well as to make submissions which he would have made to the Judge in the court below had a hearing for the determination of the Leave Application been fixed pursuant to his request.

10.  By reason of the problematic basis on which the Leave Decision was reached by the Judge, this court will, in addition to its determination of the present appeal, exercise afresh the court’s discretion with respect to the Leave Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review should have been granted to the applicant by the Judge.

11.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [4]-[10], which will not be repeated. 

12.  After considering the documents filed by the applicant, the Judge dismissed the Leave Application for the reasons stated at [13]-[18] of the Leave Decision.

Appeal to this court

13.  In the Notice of Appeal filed on 22 December 2025, the applicant stated, in gist, that the Judge’s determination of the Leave Application on the papers, despite his request for an oral hearing, was procedurally unfair, and that he had been prejudiced by the lack of legal and/or language assistance in the processing of his claim.  The applicant further contended that the Board, in reaching its Decision, “relied mainly on negative factors and rejected favourable material without proper explanation”.

14.  The applicant has, since the restoration of the hearing of his appeal, lodged written submissions on 11 March 2026[3]. In his submissions, the applicant primarily contended, inter alia, that (i)  he would face a real risk of serious harm due to the land dispute with his uncle; (ii)  the Judge erred in refusing leave by failing to fix a hearing for his application, that he erred by not having properly examined his “public law grounds” and by not taking into account his circumstances as a self-represented litigant.  The applicant also raised numerous disagreements with the findings by the Board, such as the Board’s alleged misguided reliance on certain Country of Origin Information.  Finally, the applicant also complained that he was prejudiced in the processing of his claim by reason of his self-representation and his “struggle with language”. 

15.  We acknowledge that the applicant had in the Affirmation filed in support of his Form 86, under O.53 r.3(3)  of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was not open to the Judge to determine the Leave Application on the papers in these circumstances.  In this case, we note that the Judge in his decision had nonetheless proceeded to determine the application on the papers.

16.  This court therefore directed that an oral hearing be fixed for the purpose of enabling the applicant to make submissions in support of the present application, as well as submissions he would have made to the Judge in support of the Leave Application, had an oral hearing been fixed for that purpose.  The Board and the Director of Immigration were excused from attendance at the hearing.

17.  We heard the appeal on 1 April 2026.  The applicant appeared in person at the hearing, at which he stated that the “condition of Punjab is not well” and that he needed time for his “issues” to be resolved. He submitted that once those “issues” are resolved, he would return to his country.

Discussion

18.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered and decided to exercise the Judge’s discretion in respect of the applicant’s Leave Application afresh.

19.  Notwithstanding the lack of an oral hearing before the Judge, the applicant was afforded an opportunity to make submissions to this court at the hearing of the present appeal on 1 April 2026.  

20.  For the following reasons, we are of the view that despite the procedural irregularity, the present appeal falls to be dismissed by reason that it is wholly lacking in merits.

21.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

22.  Apart from the procedural error by the Judge (which we have dealt with above), the points advanced by the applicant were bare assertions 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].

23.  In the present case, the Board found the factual bases of the applicant’s claim or alleged risk of harm to be incredible, as there were “significant inconsistencies” in material parts of his evidence, and the Board also found that the applicant’s claims concerning injuries allegedly sustained at the hands of his uncle had been fabricated (Board’s Decision, [44]-[51]).  The Board was thus not satisfied that the applicant would be at a real risk of harm should he be refouled to India.  These were factual findings open to the Board on the evidence, and were also canvassed and considered by the Judge in the Leave Decision at [13]-[18].  We have ourselves subjected the Board’s Decision to anxious scrutiny, and we see no basis to interfere with the Board’s findings and conclusions.

24.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

25.  We are unpersuaded by the applicant’s complaint of prejudice caused by his lack of legal representation.  As this court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

26.  We are equally unpersuaded by his complaint as to the apparent lack of language assistance, as he was clearly able (whether by himself or with the assistance of others)  to lodge comprehensible English documents and submissions with the court and in the processing of his claim below.

27.  In exercising afresh the court’s discretion, we are of the firm view that the applicant has failed to satisfied the threshold required for leave to apply for judicial review.  The Leave Application was unmeritorious, and we too would have refused leave for the applicant to apply for judicial review.  The Leave Application was rightly dismissed.

28.  There is therefore no merit in the application, and thus in this appeal, and we dismiss the appeal accordingly.