Re Ranjodhbir Singh

CACV 182/2023, [2025] HKCA 417

On appeal from [2023] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 182 OF 2023

(ON APPEAL FROM HCAL 865/2019)

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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 13 June 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 21 March 2019 (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non‑refoulement claim based on the BOR 2 risk^[1].

Background

2.The applicant is a national of India. He entered Hong Kong as a visitor on 1 November 2008, but he overstayed and was arrested by the police on 26 August 2009.  Thereafter, he lodged a torture claim on 7 October 2009, which was later treated and processed as a non-refoulement claim. 

3.The applicant’s claim was based on a fear of being harmed or killed by his boss and his paternal uncle.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Judge’s decision (“the CALL-1 Form”)[2].

4.By a Notice of Decision dated 21 August 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk^[3], the BOR 3 risk^[4] and the persecution risk^[5].  

5.The applicant appealed against the Director’s 1^st Decision to the Board.  After a hearing on 8 April 2016, the Board dismissed the appeal on 23 February 2017 (“the Board’s 1^st Decision”).  The Board’s 1^st Decision covered all applicable grounds for non-refoulement protection, save the BOR 2 risk.  The Board found on the facts and evidence that the risk of harm posed to the applicant, should he be refouled, was “extremely low” (Board’s 1^st Decision, [39]).

6.By a Notice of Further Decision dated 18 April 2017 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s claim based on the BOR 2 risk.  The applicant appealed against the Director’s 2^nd Decision to the Board.  After a hearing on 23 October 2018, the Board dismissed the appeal by its 2^nd Decision.

The Judge’s decision

7.The applicant filed a Form 86 on 29 March 2019 seeking to judicially review the Board’s 2^nd Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he merely stated that he was dissatisfied with the Board’s Decision, and that it was not safe for him to return to India.

8.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 [15] to [21] of the CALL-1 Form:

"[15]  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Second 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).

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

[17]  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.’

[18]  The ground raised in paragraph 14 is only his opinion, without any evidence in support of it. The applicant has not been able to raise any valid reason to challenge the Board’s Second Decision.

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

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

CONCLUSION

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

Grounds for appeal

9.In the Notice of Appeal dated 16 June 2023, the applicant complained of the lack of an oral hearing before the Judge for his leave application.

10.In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge his written submissions with the court.  In the circumstances, the applicant is deemed to have abandoned his right to rely on written submissions.

11.On 23 August 2023, the applicant filed a “Request for Dismissal of Appeal” with the court.

12.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

13.Given the applicant’s latest request for a dismissal of the present appeal, it can be dismissed on this basis alone.  We have nonetheless considered the merits of the appeal.

14.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.

15.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.

16.The applicant’s complaint of the lack of an oral hearing is unmeritorious.  As he made no such request in the court below, the Judge was entitled to deal with his application on paper.

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

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

The applicant acting in person