RE PARDEEP SINGH

CACV 261/2023, [2025] HKCA 475

On appeal from [2023] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 261 OF 2023

(ON APPEAL FROM HCAL 1011/2019)

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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 3 August 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 11 March 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 June 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong illegally on 12 October 2015, and he had surrendered himself to the Immigration Department on 23 October 2015.  Thereafter, he lodged a non-refoulement claim made by way of written representations dated 14 June 2016. 

3.  The applicant’s claim was based on a fear of being harmed or killed by members of an opposition political party.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 26 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the BOR 2 risk[3], the BOR 3 risk[4] and the persecution risk[5].

5.  The applicant appealed to the Board.  After a hearing on 12 November 2018, the Board dismissed the appeal on 11 March 2019 by the Board’s Decision.  The Board’s Decision covered all applicable grounds for non-refoulement protection.  The Board found that on the facts and evidence, the risk of harm is low, and that alternatively, suitable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 15 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he merely stated that he had “a problem” and that he was dissatisfied with the Board’s Decision.  

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

16.  The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim and found that he will not be subjected to any real risk of being harmed or killed by his enemies. The grounds set out in paragraph 12, supra are not valid to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal dated 17 August 2023, the applicant did not set out any grounds of appeal, but merely stated that he was dissatisfied and disagreed with the Judge’s decision.

9.  In his written submissions lodged on 31 August 2023, the applicant repeated the background to his claim and the alleged harm he may face should he be refouled.  He also stated that he wished for his “JR” to be granted by reason of the birth of his son in Hong Kong on 8 August 2022.  This, however, provides no basis for granting leave for judicial review in the absence of public law grounds for doing so.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  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.  The applicant has wholly failed to do so.

12.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

13.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

14.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.