RE SINGH NEERAJ

CACV 469/2024, [2026] HKCA 1377

On appeal from [2024] HKCFI 3029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2024

(ON APPEAL FROM HCAL 1245 OF 2024)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the applicant against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 5 November 2024 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board / Non-refoulement Petition Office (“Board”) given on 24 July 2024 (“Board’s 3^rd Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by decisions dated 19 August 2015 and 16 February 2017 (respectively “Director’s 1^st and 2^nd Decisions”).

Procedural history

2.  It is convenient at the outset to outline the procedural history of these proceedings.

3.  The applicant had previously sought to appeal against the Director’s 1^st and 2^nd Decisions (which together refused the applicant’s NRF Claim on all applicable grounds for non-refoulement) to the Board by 2 notices of appeal/petition, both submitted out of time, respectively on 7 September 2015 and 7 April 2017.

4.  The Board, by its decisions dated 2 December 2016 and 4 January 2019 (“Board’s 1^st and 2^nd Decisions”), respectively refused the applicant’s late filing of his appeals against the Director’s 1^st and 2^nd Decisions.

5.  By a Form 86 filed on 15 January 2019 in HCAL 142/2019, the applicant applied for leave to apply for judicial review against the Board’s 2^nd Decision. By a decision dated 2 December 2021 (embodied in a CALL-1 Form dated the same: [2021] HKCFI 3648), the Judge granted the applicant (1) an extension of time to apply for leave to apply for judicial review against the Board’s 1^st Decision; and (2) leave to apply for judicial review against both the Board’s 1^st and 2^nd Decisions.

6.  Consequently, the applicant’s NRF Claim (on all applicable grounds for non-refoulement) was remitted to the Board for redetermination. By the Board’s 3^rd Decision, the applicant’s appeal against the Director’s 1^st and 2^nd Decisions was refused.

7.  The applicant, in the present proceedings (i.e. HCAL 1245/2024), applied for leave to apply for judicial review against the Board’s 3^rd Decision, which was refused by the Judge’s Decision.

8.  The applicant now appeals against the Judge’s Decision.

Bases and allegations in support of NRF Claim

9.  The bases of the NRF Claim made by the applicant, a national of India, are fears of being harmed or killed by a man named Ashok by reason of a personal grudge.

10.  The circumstances giving rise to such alleged fears have been set out in detail in paragraph 6 of the Director’s 1^st Decision, and paragraphs 45 to 46 of the Board’s 3^rd Decision, and in gist in paragraphs 1 to 7 of the Judge’s Decision embodied in the Form CALL-1 dated 5 November 2024, [2024] HKCFI 3029 (“Form CALL-1”).

11.  Briefly:

(1) The applicant was born in Uttar Pradesh, India.

(2) One of his cousins married a local gangster named Ashok, who had frequently demanded money from the applicant’s family, as well as filing false charges with the local police against the applicant’s father.

(3) The applicant claims that he had suffered threats and harassment from Ashok, and occasions, he was arrested by the police (arrests which he suspected was under the orchestration of Ashok).

Refusal to land in Hong Kong and lodgment of NRF Claim

12.  The record shows that the applicant last attempted, but was refused permission, to land in Hong Kong on 4 May 2015. On the same day, the applicant lodged a NRF Claim by written representations, upon which he was transferred to and detained at the Castle Peak Bay Immigration Centre.

13.  The applicant’s NRF Claim was assessed under the Unified Screening Mechanism, which was for all applicable grounds for non-refoulement protection including torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk.[4]

Director’s Decisions

14.  The Director assessed the applicant’s NRF Claim based on the information he had provided in his Non-refoulement Claim Form dated 12 June 2015 (“NCF”) and at the screening interview by the Director’s representative(s) on 29 June 2015. The applicant also did not, upon the Director’s request, provide additional information in support of and pertaining to the NRF Claim under “BOR 2” risk.

15.  The Director, by his 1^st and 2^nd Decisions, found the NRF Claim unsubstantiated under all 4 applicable grounds. The Director found, inter alia, that (1) the risk of harm against the applicant by Ashok was low should he return to India, as the past ill-treatment sustained by him had been of a low intensity and frequency; (2) on the facts and evidence, it was unlikely, due to lapse of time, that Ashok still held any adverse interest against him; (3) suitable options of internal relocation were available to the applicant.

Appeal to Board and Board’s 3^rd Decision

16.  As mentioned hereinabove, after the granting of leave to the applicant to apply for judicial review in HCAL 142/2019, the NRF Claim was remitted to the Board for redetermination.

17.  The Board conducted a rehearing of the NRF Claim on 4 June 2024, at which the applicant testified before, and answered questions by, the Board.

18.  The Board, by its 3^rd Decision, dismissed the appeal against the Director’s 1^st and 2^nd Decisions on all 4 grounds for non-refoulement protection for the following reasons.

19.  The Board, like the Director, found that it was unlikely, due to lapse of time, for Ashok to still hold an adverse interest against the applicant. In any event, the Board agreed that suitable options of internal relocation were available to the applicant in order to minimise the risk of harm, if any.

Application for leave for judicial review and Judge’s Decision

20.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued in HCAL 1245/2019 on 30 July 2024 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s 3^rd Decision.

21.  The Form 86 failed to set out any proposed grounds of review, and the applicant merely exhibited in his supporting affirmation a copy of the Board’s 3^rd Decision.

22.  Having considered the papers lodged as well as hearing from the applicant in court, the Judge refused to grant leave to apply for judicial review of the Board’s 3^rd Decision for the reasons set out at [13] – [16] of the Form CALL-1:

“13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

Appeal to Court of Appeal - grounds of appeal and submission

23.  By the notice of appeal filed herein on 11 November 2024, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called. The applicant however, in the notice of appeal, emphasised that he would face hardship upon refoulement, and that the Board had (1) “significantly relied on the source of news which is not officially recognised”; (2) “relied on some cases which are outdated”; and (3) “made groundless speculations”.

24.  By the written submission lodged on 1 April 2025, the applicant, inter alia, complained that the proceedings determinative of his NRF Claim were unfair due to the lack of legal representation and language assistance.

25.  On the date of the hearing on 7 May 2025, the applicant failed to appear.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

26.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

27.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2) & (4)].

Appeal has no merit

28.  The applicant’s so-called proposed grounds for judicial reviews were but general and bare assertions without any supporting particulars or evidence. The applicant has wholly failed to articulate any matters which could properly give rise to a ground based on error of law, procedural unfairness or irrationality on the part of the Board. The application for leave to apply for judicial review was bound to fail. The Judge did not err in refusing leave.

29.  We could not discern from either the applicant’s notice of appeal or the written submissions any matters which could form the bases upon which the Judge’s Decision should be disturbed. The applicant has failed to articulate any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nothing he has raised merits serious consideration as a potential basis to interfere with the Judge’s Decision.

30.  There is no merit in the applicant’s complaint of a lack of language assistance, as we note that the applicant was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English. We cannot see any prejudice caused to the applicant in the processing of his claim by reason of his alleged lack of or insufficient proficiency in English.

31.  Further, 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.

32.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

33.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.