RE YADAV SHESH NATH

CACV 209/2025, [2025] HKCA 1012

On appeal from [2025] HKCFI 1322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2025

(ON APPEAL FROM HCAL NO. 3752 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 Philips Wong (the “Judge”) given on 11 April 2025 ([2025] HKCFI 1322) dismissing his application for leave to apply for judicial review. The intended judicial review was in respect of a decision of the Torture Claims Appeal Board (the “Board”) dated 11 December 2019, which dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 27 June 2018 rejecting his non-refoulement protection claim.

B.   Background

2.  The applicant is an Indian national.  He is now aged 37.  On 3 January 2017, he entered Hong Kong as a visitor.  He overstayed.  He was arrested on 29 May 2007.  He lodged a torture claim on 19 June 2007.  He then withdrew his claim on 12 April 2013 before it was decided, and made a subsequent claim on 9 July 2013, based on fear of being harmed or killed by the leader or members of the opposition party, the Bahujan Samaj Party (“BSP”) due to his affiliation with the Samajwadi Party.  His claim was set out in details at [10] of the Director’s decision and [7] to [9] of the Board’s decision.

3.  In gist, the applicant claimed that the leader of the BSP, Dara Sing Malah (“Malah”) was seeking revenge against him, his brother and his cousin as a result of political clashes between the two political parties, which led to the injury of Malah’s son and the death of his cousin’s brother.  Although the applicant was not involved in the clashes, he nevertheless felt unsafe and fled 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 of 27 June 2018, the Director rejected the applicant’s claim on all grounds.

D.   The Board’s Decision

5.  The applicant appealed to the Board.  A hearing took place on 30 September 2019.  During the hearing, the applicant explicitly told the Board that it would be safe for him to return to India, as his problems had dissipated, and neither he nor his brother was at risk any longer ([9]).  As further recorded at [22] to [23] of the Board’s decision:

“22.   In this case the appellant explicitly states he is not at risk in India, that it is safe for him to return there and that he would have no difficulties doing so. His reason for pursuing the appeal, as he made very clear at the hearing, was because he now has a Hong Kong spouse and child and wishes to remain in Hong Kong for family reasons.

23.   …He was clearly told during the hearing that the Board had no jurisdiction to consider any application to remain as a spouse and that if the explicitly maintained he was no longer at risk in India and could safely return there his appeal would be dismissed.  Even after this explanation the appellant continued to maintain he faces no risk in India and can safely return there.”

6.  In the premise, the Board found that the applicant had failed to discharge the burden upon him to establish any risk of harm for any reason in India.  The Board dismissed his appeal.

E.   The Judge’s Decision

7.  On 17 December 2019, the applicant filed a Form 86 and sought leave to apply for judicial review against the Board’s decision.  He did not therein state any grounds for seeking relief.  In his affirmation, he simply stated that he was not satisfied with the Board’s decision, and that his life was not safe in his home country.   

8.  The Judge heard the leave application at a hearing on 12 March 2025.  By Form CALL-1 dated 11 April 2025, the Judge dismissed the application and gave his reasons at [6] to [9] as follows:

“6. In the Form, the Applicant did not state any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply stated that he was not satisfied with the Board’s Decision and that he would not be safe in his country.

7. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. In fact, it is important to note that the Applicant expressly admitted before the Board that he was no longer at risk in India, and that he was pursuing the claims only because he had married a Chinese woman and had a child in Hong Kong, and so he wanted to remain in Hong Kong for family reasons (see paragraphs 6, 22 to 24 of the Board’s Decision). Given the Applicant’s express admission that he was no longer at risk in India, the Board was entitled and indeed correct to refuse the claims.

8. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

9. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.”

F.   Grounds of appeal

9.  By a notice of appeal dated 22 April 2025, the applicant appealed against the Judge’s decision.  The grounds of appeal are as follows (all mistakes being original):

“1-   The decisions are unlawful.

2-   The Decisions failed to taken into account many things and assues.

3-  I have life’s danger in my home country Indonesia, so why, I can’t go back to my Home Country.  Please help me to save my life.” 

10.  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.  The Director’s rejection of his claim was unfair, and a high standard of fairness not attained;

(2)    The Board did not give him sufficient opportunity to prove his claim; and

(3)    He should be entitled to non-refoulement protection on the grounds of torture risk, BOR 2 and 3 risks and persecution risk.

11.  The applicant made no oral submission at the hearing of the appeal.

G.   Our reasons for judgment

12.  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 Country of Origin Information 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.

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

(1)  As the Judge has pertinently pointed out, the applicant admitted before the Board that he was no longer at risk in India, and that he was pursuing the claims only because he had married a Chinese woman and had a child in Hong Kong. Given his admission, the Board was perfectly entitled to refuse his appeal;

(2)  The complaints made in the notice of appeal, the affirmation and the written submissions are directed at 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 cannot serve to advance the applicant’s appeal;

(3)  His complaints against the Board are not made out given his explicit admission to the Board that he was no longer at risk, and that the sole reason for his appeal was for him to remain in Hong Kong with his spouse and child;

(4)  We add that the fact that the applicant has a family in Hong Kong does not entitle him to a right to enter or remain in Hong Kong.  It is established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at §92(7) - Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§57, 65 and 69; and Re Purisima Aida P [2022] HKCA 637 at §15.

H.   Order

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