RE SINGH KULDEEP

CACV 221/2025, [2025] HKCA 1014

On appeal from [2025] HKCFI 1387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 221 OF 2025

(ON APPEAL FROM HCAL NO. 3832 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

A.  The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Levy (the “Judge”) given on 16 April 2025 ([2025] HKCFI 1387) dismissing his application for leave to apply for judicial review.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (the “Board”) dated 19 December 2019, which dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 21 August 2018 rejecting his non-refoulement protection claim.

B.  Background

2.  The applicant is an Indian national.  He is now aged 40.  He entered Hong Kong on 18 November 2006 as a visitor.  He then made three side trips to Mainland China, and last arrived in Hong Kong on 27 December 2007.  He was permitted to stay until 10 January 2007.  He overstayed.  He was arrested by the police on 12 April 2007.  On 16 April 2007, he lodged a torture claim and was released on recognizance on 19 May 2007.  In 2010, he was arrested and sentenced to imprisonment twice, first time for taking up unapproved employment, and second time for taking up employment while his removal order (issued on 7 September 2010) was in force.  His torture claim was rejected on 5 September 2012.  On 5 December 2013, he lodged a non-refoulement claim, based on the fear of being harmed or killed by his uncle, Mahinder Pal Singh and his accomplices over some land disputes in India.  His claim was set out in detail at [7] of the Director’s decision, and [3] to [23] of the Board’s decision.

3.  In gist, the applicant claimed that after his grandfather passed away in 2011, his uncle tried to evict him and his family from his grandfather’s house. Though the matter was resolved through mediation by the village head, it remained his uncle’s intention to evict them and get sole ownership of the house.  His uncle also wanted to seize his father’s farmland, as his uncle had some lands nearby.  His uncle had sent gangsters to the applicant’s house to attack the applicant and his family.  The applicant claimed that the local police and the village head were not able to help them, as his uncle was well-connected with the leaders of the Baharatiya Janata Party.  Fearing for his safety, the applicant left India in 2006.

C.  The Director’s Decision

4.  The applicant’s non-refoulement claim was made under the grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].  By his decision dated 21 August 2018, the Director rejected the applicant’s non-refoulement claim on all grounds.

D.  The Board’s Decision

5.  The applicant appealed to the Board.  A hearing took place on 7 August 2019.  The applicant testified.  By its decision dated 19 December 2019, the Board dismissed the appeal.

6.  In summary, the Board found that there was no independent evidence to support the factual basis of the applicant’s claim ([44]).  The Board also identified material discrepancies in the applicant’s documentary and oral evidence.  Those discrepancies concerned the ownership of the farmland concerned, and the assaults which the applicant said had taken place.  Those discrepancies undermined his credibility ([45] to [52]).  The applicant further agreed that as the farmland was in his father’s name, he was not targeted by his uncle, that there was no need for him to depart the country in 2006, and that it was safe for him to return to India.  The Board hence found that the applicant had failed to discharge the burden upon him to establish any risk of harm for any reason in India ([55] to [57]).  The Board also assessed, on the basis of the available Country of Origin Information (“COI”), that state protection is available and internal relocation is feasible ([58], [61] and [62]).

E.  The Judge’s Decision

7.  On 23 December 2019, the applicant filed a Form 86 and sought leave to apply for judicial review against the Board’s decision.  He did not state therein any grounds for seeking relief.  In his affirmation, he stated that his enemies were powerful people, and that it was not safe for him to return to India.

8.  The Judge dealt with the application on paper.  By Form CALL-1 dated 16 April 2025, the Judge dismissed the application and gave her reasons at [5] to [7] as follows:

“5.  The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[5] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[6], and further to make full and frank disclosure of all material facts to be verified by an affidavit. However, no such grounds have been identified by the applicant and he merely stated in his supporting affirmation that there were still threats, and that his enemies were powerful people. He feared that he would be killed should he be re-fouled.

6.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[7] In the present case, the Board’s findings that that applicant was not a credible witness due to the numerous discrepancies and the lack of corroborating evidence, and of the reasonable availability of state protection and internal relocation, are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[8].”

F.  Grounds of appeal

9.  By notice of appeal dated 23 April 2025, the applicant appealed against the Judge’s decision.  He gave therein the following grounds of appeal (all mistakes being original):

“The High Court did not find any error of proceding. But I can show many error. Give me a chance to show the error of the adjudicator. By apply sould not be refused.”

10.  The applicant on 7 May 2024 further filed an affirmation.  He asserted therein that the Judge’s and the other earlier decisions were all unlawful.  He said that he did not want to go back to his home country, as his life was in danger in India.  He asserted that those decisions had failed to take into account the dangers and risk of his life.

11.  In the applicant’s written submissions lodged on 1 September 2025, he submitted that (1) the Director had failed to give weight to the presence of state acquiescence, the misconduct of the police officials and the incompetent administration in India, which failures had led to an unfair rejection of his claim and the Director’s failure to attain a high standard of fairness in the consideration of his claim; (2) the Board did not give him sufficient opportunity to prove his claim; (3) he should be entitled to non-refoulement protection on grounds of torture risk, BOR 2 and 3 risks and persecution risk.

12.  He made no oral submissions during the hearing of the appeal.

F.  Our reasons for judgment

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In summary, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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.

14.  Applying the established legal principles set out above, we are of the view that the appeal has no merit.  Our reasons are as follows:

(1)  The complaints made in the written submissions are directed towards the decisions of the Board and the Director.  In respect of the Director’s decision, as the applicant had appealed it to the Board, it had been superseded by the Board’s decision, which represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549 at §45.  It is not open to the applicant to challenge the Director’s decision by way of judicial review.  The complaints levelled against the Director’s decision are therefore irrelevant, and the applicant’s appeal cannot be advanced thereby;

(2)  The complaints against the Board cannot stand in the light of the Board’s finding of material discrepancies in the applicant’s evidence.  It should further be noted that the applicant had expressly admitted to the Board that he was not a target of his uncle as the ownership of the farmland was with his father, so that it would be safe for him to return to India ([55] to [57] of the Board’s decision);

(3)  In his Form 86 and supporting affirmation, the applicant did not set out any ground for seeking relief.  Nor was he able to make any particularised challenge to the reasoning and findings of the Board.  Further, the Judge, having scrutinised the Board’s decision and for reasons given at [6] of the decision, found no proper basis to disturb it;

(4)  Despite the assertion in his notice of appeal that the Judge erroneously did not find any error in the proceedings, the applicant failed to identify with particulars any error on the part of the Judge.  There is no proper basis for this court to interfere with the Judge’s decision.  

G.  Order

15.  For the above reasons, we are of the view that the applicant’s appeal is devoid of merit.  We dismiss the same.