RE KULDEEP SINGH

CACV 51/2026, [2026] HKCA 491

On Appeal From [2026] HKCFI 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 51 OF 2026

(ON APPEAL FROM HCAL NO. 33 OF 2021)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung (“the Judge”) given on 7 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 6 June 2017 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim having regard to the BOR 2[2] risk ground.

Background

2.  The applicant is a national of India born in 1982.  On 3 September 2014, he entered Hong Kong and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 14 December 2014.   He then raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by two men Mr M and Mr D, who demanded the applicant to return the agency fees they paid to Mr B, a travel agent introduced to them by the applicant, because Mr B had absconded with the money.  

3.  By a decision dated 22 June 2015, the Director rejected the applicant’s non-refoulement claim based on the torture risk[3] , persecution risk[4] and BOR 3 risk[5] ground.  The applicant’s appeal against this decision was dismissed by the Torture Claims Appeal Board (“the Board”) in a decision dated 13 April 2017.

4.  Subsequently, by a letter dated 19 May 2017, the Director invited the applicant to submit additional materials including those relevant to the BOR 2 risk ground. The applicant did not respond to the letter.  By a decision dated 6 June 2017, the Director rejected the applicant’s claim on the BOR 2 risk ground (“the Director’s BOR 2 Decision”). 

5.  By a Form 86 dated 8 January 2021, the applicant applied for leave to judicially review the Director’s BOR 2 Decision.  He did not provide any grounds for seeking relief in either the Form 86 or the accompanying affirmation.   

6.  The Form 86 was late by almost three and a half years as Order 53 rule 4(1) of the Rules of the High Court Cap. 4A provides that such application should be made promptly and in any event within three months from the date when grounds for the application first arose. The Form 86 or the accompanying affirmation did not provide any explanation for the delay.   

The Judge’s Decision

7.  The Judge heard the application on 15 October 2025.  The applicant only informed the Judge that his danger was continuing.  By a Form CALL-1 dated 7 January 2026, the Judge dismissed his application for leave to apply for judicial review.

8.  In summary, the Judge held that the application, which sought only to challenge the Director’s BOR 2 Decision, was bound to fail as the applicant has not appealed the decision to the Board, and has therefore not exhausted all avenues before seeking leave to apply for judicial review.  

9.  Nevertheless, the Judge also went on to consider the application as if it were a challenge against the Board’s decision dated 13 April 2017, which assessed the applicant’s non-refoulement claims on all applicable grounds other than the BOR 2 risk ground.  The Judge pointed out that the Board’s findings and assessment were made after full and proper consideration of all the evidence and relevant country of origin information, and the applicant had not identified any error of law, procedural unfairness or irrationality in its decision.  The Judge held that in the absence of any errors of law, procedural unfairness or irrationality the intended judicial review had no prospect of success.

This appeal

10.  By a Notice of Appeal filed on 19 January 2026, the applicant appeals the Judge’s decision to this Court.  The grounds of appeal state that the Board had relied on sources of news that are not officially recognised or are simply hearsay, outdated cases and unreliable information, and had consequently made groundless speculations about his case.

11.  The applicant’s written submissions quote extensively from judgments on the high standard of fairness and Wednesbury unreasonableness. They also contend that: (1) the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed such that the high standard of fairness should apply; (2) the Board erred in its approach and had failed to consider relevant matters such as the country conditions; and (3) the decision-making process must meet minimum standards of procedural fairness.

12.  At the hearing, the applicant stated that he could not return to his country because India is not a safe place.  He said there were many gangsters and killings happen on a daily basis.  He also mentioned that in a nearby village, someone who returned from Italy was murdered, and two police officers were also killed a location about 8 to 10 kilometres from his home village.  He further stated people kept coming to his house to ask his father about his whereabouts, that he now has a family in Hong Kong with a two-year old daughter, and he did not feel safe to take her with him to India.       

Our reasons for decision

13.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  As mentioned above, the applicant only sought leave to judicially review the Director’s BOR 2 Decision.  In this appeal, we are only concerned with whether the Judge is correct in dismissing the applicant’s application.  In this regard, given that the applicant has not appealed the Director’s BOR 2 Decision, the Judge is correct to hold that it is not open to him to challenge it by way of judicial review without exhausting all avenues: SI v Director of Immigration (unreported, HCAL 74/2015, 23 June 2017) at [35]-[36]; Kwok Ping Sheung Walter v The Law Society of Hong Kong (unreported, HCAL 73/2012, 27 September 2013) at [26]-[27].   The applicant’s grounds of appeal and written and oral submissions have not engaged the Judge’s reasons for dismissing his application, and do not show any error in the Judge’s decision.

15.  We would also make two additional observations. First, the applicant had failed to respond to the Director’s request to adduce information and materials for assessment under the BOR 2 risk ground.  On the materials before the Director, the requirements for establishing the BOR 2 risk ground are simply not met, both on the facts and as a matter of law.   Second, the applicant’s serious delay in applying to the court and his failure to explain the delay are additional reasons for refusing his application for leave to apply for judicial review.    

16.  The applicant’s written and oral submissions are misplaced.  They are concerned with the Board’s decision dated 13 April 2017, which does not form the subject matter of the Form 86 or this appeal.  In any event, as the Judge observed, the Board is entitled, for the reasons it gave, to conclude that the applicant failed to show any real risk of harm entitling him to non-refoulement protection under the torture risk, persecution risk and BOR 3 risk grounds.  

17.  For the above reasons, we are of the view that appeal has no merits.  Accordingly, we dismiss the applicant’s appeal.

[1] [2026] HKCFI 88

[2] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.