KULWANT SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 504/2025, [2026] HKCA 687

On appeal from [2025] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 504 OF 2025

(ON APPEAL FROM HCAL NO 938 OF 2020)

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BETWEEN

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JUDGMENT

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The Court:

INTRODUCTION

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 8 July 2025[1] (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 May 2020 (“the Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 29 August 2018 (“the Director’s Decision”).

BACKGROUND

2.  The applicant is a national of India. He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he would be harmed or killed by a man named Jeet and other fellow villagers due to a land dispute. The applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was rejected by the Board. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 8 July 2025 (“the Form CALL-1”).

3.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

GROUNDS OF APPEAL

4.  By a notice of appeal filed on 16 July 2025, the applicant sought to appeal the Judge’s decision to this court on the ground that (sic) :-

“I am disagree with the decision maker authorities. The decision made by Director of Immigration, as well as decisions made by Adjudicator of the Torture Claim Appeal Board. I do not think my claim determined fairly.”

5.  In the applicant’s skeleton submissions lodged on 6 March 2026, he stated that (sic):

1. I am the Applicant in this case proceedings CACV504/2025 I am a Non-refoulement claimants. I am write this written submission in support of my application.

2. I am disagree with the decision made by the Director of Immigration, As well as the adjudicator of Torture Claims Appeal Board. I do not think my case has been determined fairly.

3. I was deprived of the right to make full ground for appeal. By not having the determination translated or read back to me, I had to submit everything in English because the court would not accept grounds written in my own language, otherwise I would have to done that.

4. The Judge’s have erred in determining that the Judge had not failed to appreciate the significance of my Non-refoulement Claim. The lack of assistance provided to me is an error of law or procedures, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness. This is because Non-refoulement claim are life and limb cases and should be assessed with caution, taking into account my vulnerability and disadvantage.

5. I urge the authorities to take it into the real procedural unfairness throughout the case and to put public policies of trying to dispose of Non refoulement Claims as quickly as soon as possible aside.

6. Without knowing through how case was determined, it is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

7. First and most, I was never provided with proper legal and language assistance. With my limitations in terms of resources, funding and language capabilities it has been burden some for a Non-refoulement claimants like

8. The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposed of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.

9. The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.”

6.  The applicant also included copies of the following documents together with his submissions but without making any reference to them:-

a) the HKID card of his wife who is a Hong Kong permanent resident;

b) a letter dated 9 January 2026 from the Immigration Department showing that the applicant is applying for entry for residence as dependant in Hong Kong;

c) birth certificates of his son and daughter in Hong Kong.

7.  At the hearing on 24 March 2026, he confirmed that he wishes to rely on the fact that he has a family in Hong Kong to support his appeal. He is waiting for the new Indian passport to be issued by the authority in connection with his application to the Hong Kong Immigration Department.

DISCUSSION & DISPOSITION

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

9.  The assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022.

10.  In the present case, the Judge found no error of law or procedural unfairness or irrationality in the decision of the Board. The mere assertions as stated in his grounds of appeal and in his submissions are not substantiated with any specific information or elaboration as to how they apply to his present appeal.

11.  As to the applicant’s complaint regarding the lack of language and legal assistance, we noted that all of the court documents filed by the applicant in this appeal as well as before the court below are in English and are well articulated, and as noted under paragraph [7] of the Board’s Decision, the applicant was legally represented by the Duty Lawyer Service during his process before the Director. When he attended the hearing before the Board, he was able to answered the questions put to him. Clearly, the applicant was at the least able to obtain some form of legal assistance and did not require language assistance. Further, as the Judge has pointed out under paragraphs [9] and [11] in the Form CALL-1, the basis of the dismissal of the leave application by the Judge was that the applicant did not raise any specific ground of challenge against the Board’s Decision. It is improper to raise any new grounds at this stage. Accordingly, there is no merit in his assertions and we see no prejudice suffered by the applicant from the alleged lack of language or legal assistance.

12.  Moreover, it has been repeatedly emphasized by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].

13.  As to the assertion in his submissions made at the hearing before us that he has to take care of his wife (who is a permanent resident in Hong Kong) and his two children both born in Hong Kong, this does not detract from the fact that he does not have any right to enter or to remain in Hong Kong. It is well-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)] and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15]. Accordingly, the fact that the applicant has built a family here in Hong Kong is not relevant consideration in assessing his non-refoulement claim.

14.  In any event, it is incumbent on the applicant to point out the Judge's errors with sufficient particulars and specifics. In our view, the matters set out in the applicant’s notice of appeal and written submissions failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

15.  For the above reasons, the applicant’s appeal is devoid of merits. We dismiss it accordingly.