RE PRABHJOT KAUR

CACV 55/2024, [2026] HKCA 1211

On Appeal From [2024] HKCFI 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 55 OF 2024

(ON APPEAL FROM HCAL NO. 1320 OF 2019)

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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 K W Lung (“the Judge”)  given on 8 February 2024[1], which refused her application for leave to apply for judicial review against the decision dated 24 April 2019 of the Torture Claims Appeal Board (“the Board”).  By its decision, the Board dismissed the applicant’s appeal against the decision dated 4 January 2019 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of India. She entered Hong Kong on 5 May 2015 and was permitted to remain to work as a foreign domestic helper.  After her employment contract was terminated and the extension of stay expired on August 2015, she did not depart and has since overstayed in Hong Kong.  On 9 March 2018, she was arrested by the police.  She later raised a non-refoulement claim on the basis that if she returned to India, she would be harmed or killed by her own family and her husband’s family as they did not approve the marriage due to the differences between her and her husband in caste, religion and family background.  Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal have been set out in the Board’s decision.

3.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing on 28 March 2019, during which the applicant gave evidence and answered questions asked by the Board.  By its decision, the Board dismissed the appeal.

4.  The applicant filed a Form 86 on 16 May 2019 to apply for leave to judicially review the Board’s decision.  Her grounds for the application were summarised by the Judge in [11] of the Form CALL-1 dated 5 June 2023 as follows:

“a. The Board had unlawfully fettered its discretion by refusing her application and it is procedurally unfair to do so. Therefore, the Board’s Decision is unreasonable or irrational in the public law sense.

b. The Board failed to meet the greater care and duty owed to a self-represented claimant as she was not given an opportunity to put forward her submissions nor was she invited to do so, which is wrong even if the Board decided not to have oral hearing.

c. The Board relied upon the source of news which is not officially recognized or it is simply hearsay or on some outdated cases. All these caused the Board to make groundless speculations that it is safe for her to return to her country.”

5.  The Judge heard the application at an oral hearing held on 5 June 2023 attended by the applicant.  By the Form CALL-1, the Judge dismissed the application.   The Judge firstly noted at [8] that:

“The Board recapped the applicant’s background [2] – [10] and her claim [28] – [46]. The Board also carefully considered the veracity of her claim at the hearing [28] – [59]. However, it found that she did not provide a truthful account of her history and it was further not persuaded that she even had a subjective fear of harm from her own family and Kiran’s family as she did not seek protection after termination of her employment contract and her purpose for coming to Hong Kong is financial [62]. Whilst the Board was prepared to accept that she had married Kiran, it was not prepared to accept that she would face any form of harm if she is refouled to India as the ill-treatments suffered before did not indicate she would be killed or harmed [63] – [66]. Having rejected the factual basis of her claim, the Board found she was not entitled to non-refoulement protection under any of the applicable grounds [69] – [72].”

6.  Having regard to the legal principles set out in [12] to [14] of the Form CALL-1 and in light of the Board’s findings, the Judge held at [15] of the Form CALL-1 that:

“The Board had, for the reasons given above, rejected the applicant’s claim for the reasons that she is not a truthful witness and there is no evidence to show that she is subjected to any real risk of being harmed or killed by her family of her husband’s family if she returns to India. The Board was entitled to come to its conclusion after considering her evidence.”

7.  The Judge also rejected the applicant’s grounds for the application for the reasons given in [16] of the Form CALL-1:

“Those grounds set out in paragraph 11 are the applicant’s bare assertions or opinions without evidence to support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’”

8.  The Judge concluded that there was no valid ground to challenge the Board’s decision and the intended judicial review had no realistic prospect of success.  He accordingly refused to give leave to apply for judicial review.

This appeal

9.  By a Notice of Appeal filed on 15 February 2024, the applicant appeals the Judge’s decision to this Court.  The Grounds of Appeal stated: 

“I do not agree with the decision of the High Court. The High Court did not find any error, but I can show many error.”

10.  The applicant consented to her appeal being disposed of on paper, and had lodged a written submission to support her appeal. 

11.  On 27 May 2026, the applicant filed an Amended Grounds of Appeal, indicating that it was filed “for the purpose of requesting an oral hearing under Order 59, rule 2A(7)”.  However, Order 59 rule 2A of the Rules of the High Court, Cap. 4A is concerned with application for leave to appeal, whereas the applicant does not require leave to appeal the Judge’s decision, and she has already put in an appeal.  Order 59 rule 2A(7)  therefore has no application, and the applicant is not entitled to amend her notice of appeal by putting in new grounds of appeal without first applying for or obtaining the Court’s permission[6]. Nevertheless, as the applicant is not legally represented, we will consider the Amended Grounds of Appeal on a de bene esse basis and regard them as substituting the grounds of appeal in the Notice of Appeal. 

12.  The Amended Grounds of Appeal sets out four grounds of appeal as follows:

(1)  The Judge failed to apply the core public law principle of anxious scrutiny and erred in law by summarily dismissing the applicant’s grounds as bare assertions.

(2)  The Judge committed a material error of law by failing to assess the Board’s breach of its heightened procedural duty toward an unrepresented claimant.

(3)  The Judge erred in fact and law by failing to evaluate the applicant’s challenge against the Board’s reliance on outdated or generic country evidence.

(4)  The Judge misapplied the clear statutory test by using a higher threshold of realistic prospect of success.   

13.  In the written submission, the applicant complained that the immigration officer did not believe her despite she had told her problem with the help of the duty lawyer and submitted documents that she brought from her country.  She also complained that the Board made many errors. She further complained that the Judge did not hold an oral hearing and did not consider her arguments.  The applicant also stated that she had given birth to a baby in Hong Kong, who was also claiming non-refoulement protection. 

Our reasons for decision

14.  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.

15.  We deal firstly with Amended Grounds of Appeal (1), (2)  and (3), which are interrelated.  In summary, the applicant’s contentions are that she was not legally represented in the hearings before the Board and the Judge, the Board denied her an opportunity to submit arguments, had failed to exercise the enhanced procedural care and duty owed to an unrepresented applicant, and had relied on unofficial, outdated country-of-origin information.  She also complained that the Judge summarily and mechanically rejected her arguments as bare assertions and not constituting valid grounds without providing any analysis and reasoning.  

16.  In considering these grounds of appeal, we must not lose sight of the fact that the applicant was assisted by lawyer assigned by the Duty Lawyer Scheme in preparing and making her non-refoulement claim and during the process before the Director.  This Court has consistently held that the high standard of fairness does not demand that an applicant be legally represented throughout the process. The appeal to the Board was a rehearing. The applicant bore the duty of showing that the facts underlying her claim was credible and her claim satisfied the legal requirements of the applicable grounds. At the appeal hearing, she had testified, answered questions and addressed the Board and put forward arguments to support her appeal.  The Board rejected her evidence and her factual case as untruthful and incredible, for the reasons given in in its decision.  The judicial review application to the Court is not a rehearing of the applicant’s claim, nor does it operate as an appeal.  To succeed in her intended judicial review application, the applicant must satisfy the Court that there are public law grounds for disturbing the Board’s findings, including the adverse finding on the credibility of her evidence and assessment of risks and country-of-origin conditions.   

17.  In her application for leave to apply for judicial review, the applicant complained that the Board denied her a proper opportunity to make submissions, and had not adequately invited or permitted her to submit arguments, which was in breach of its heightened duty of care to an unrepresented litigant.  However, we note that the Board had in [48] to [59] gave a detailed account of the hearing, including the answers given by the applicant to the Board’s questions.  This is contrary to what has been asserted by the applicant.

18.  Further, the applicant did not identify with particulars what were the areas or issues that she had wanted, but did not have the opportunity to address the Board.  More importantly, it was not pointed out how the arguments that she could not put forward to the Board would have materially affected the Board’s findings, assessment, analysis and decision. Merely asserting that she was denied a proper opportunity to submit arguments and the Board was in breach of its heightened duty of care is hardly sufficient to amount to viable ground to challenge the Board’s decision by way of judicial review.  

19.  Similarly, it is not a viable challenge to merely assert that the Board erred in relying on outdated, unofficial country-of-origin information without identifying the piece(s)  of information complained of and substantiating how and in what way the information was inapt.  Although there was no elaboration in the Form CALL-1, the Judge did not err in regarding the applicant’s grounds for seeking judicial review as bare assertions.

20.  The Amended Grounds of Appeal also complained that the Board failed to provide her with guidance on the application of country-of-origin information to her claim and to explain or clarify the legal thresholds for the applicable grounds.  This complaint is untenable.  As we have appointed out above, the applicant had the benefit of legal assistance when she made the claim to the Director.  She would have received advice as to her claim and the relevant law.  The materials before the court do not show there are circumstances in the case necessitating the Board to provide to the applicant the assistance she now claims should have been given to her at the hearing.  

21.  It was further contended in the Amended Grounds of Appeal that the Board’s finding that the applicant did not have a subjective fear of harm from her own family and her husband’s family was illogical and perverse in light of her core evidence on the circumstances of her marriage.  However, this criticism has overlooked the fact that the Board had, after careful consideration of the applicant’s evidence, found she did not give a truthful account of her history.  In finding she did not have subjective fear of harm, the Board also pointed out that she did not seek non-refoulement protection after her employment was terminated and it was her evidence that she came to Hong Kong for financial reason.  Evaluation of evidence and assessment of credibility are within the remit of the Board.  The Board was fully entitled to make the finding for the reasons it gave.  There is no merit in this complaint. 

22.  As to Amended Grounds of Appeal (2), the Court of Final Appeal has held that in order to obtain leave to apply for judicial review, an applicant must show that he has a reasonably arguable case which has a realistic prospect of success in respect of the relief sought in the application: see Peter Po Fun Chan v Winnie CW Cheung & Anor (2007)  10 HKCFAR 676 at [15].  The Judge did not err in adopting a higher threshold.  This ground is unarguable.

23.  As the Amended Grounds of Appeal are unarguable, we will not give leave for them to be filed as it would be futile to do so.

24.  Turning to the written submissions, it is incorrect to say that the Judge did not hold an oral hearing.  The fact that the applicant has given birth to a baby is not a relevant consideration in determining this appeal.  

25.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the applicant’s appeal.