Re Mandeep Singh

CACV 799/2026, [2026] HKCA 1849

On appeal from [2026] HKCFI 4047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 799 OF 2026

(ON APPEAL FROM HCAL NO. 1574 OF 2025)

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J U D G M E N T

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

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung dated 21 July 2026[1] (the “Judge” and the “Judge’s Decision”) refusing his application for leave to apply for judicial review.  The intended judicial review was against the decision dated 27 June 2025 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing the applicant’s appeal against the decision dated 6 May 2025 of the Director of Immigration rejecting his non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.The applicant is a national of India born in 1985.  He last arrived in Hong Kong on 18 March 2024 as a visitor but overstayed from 2 April 2024.  He was arrested on 20 February 2025 and was referred to the Immigration Department on 21 February 2025.  He lodged his non-refoulement claim on 27 February 2025.  His claim was assessed on all risks: torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk.  His claim was made on the basis that if returned to India, he would be harmed or killed by his brother Harjit Singh and Harjit’s brother-in-law Gurpeet (the “Enemies”) because he refused to let them buy out his property and business at below market price.  He alleged that they attacked him in December 2023 but the police refused to register the incident due to Gurpeet’s connection with a local BJP[6] leader named Manjit.  He fears being located due to BJP’s nationwide network.  He does not consider state protection or internal relocation viable.

3.The Board in the Board’s Decision set out in detail the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal[7]. In gist, the Board found that the applicant’s claim arose from a private land and property dispute, which was unconnected to any Refugee Convention ground.  The ill-treatment, namely the alleged threats and abusive foul language, the attack in December 2023 and the failed car attack in January/February 2024, did not reach the minimum level of severity.  The Board assessed that his fear was not well-founded, as he was neither located nor harmed during the three weeks he stayed in Delhi.  Further, despite the existence of corruption and inefficiency in the police force according to some country of origin materials (COI), the Board assessed that state protection is available to the applicant as there are other COI demonstrating legal protection of human rights and anti-corruption efforts of the Indian government.  As to internal relocation, though unnecessary to decide, the Board found that relocation to Mumbai and Bangalore was viable given the size of the country, the applicant’s education and work experience, and the absence of evidence that his Enemies could locate him there[8]. Overall, the applicant’s claim failed to meet the threshold required for protection under any of the applicable grounds.

4.By a Form 86 filed on 9 July 2025, the applicant applied for leave to judicial review the Board’s decision.  In his Form 86, he sought inter alia an order of certiorari to quash the decisions of the Director and the Board on grounds that the decisions were unfair, unreasonable and irrational.  He stated that the Board placed too much weight on the COI and refused to accept his explanations.  He requested an oral hearing which took place on 6 July 2026 (the “JR Oral Hearing”).

5.For the reasons set out in a Form CALL-1 dated 21 July 2026, the Judge dismissed the applicant’s application.  In particular:

(a)  The Judge considered the Board’s Decision.  He summarised, with reference to the paragraph numbers of the Board’s Decision, the Board’s reasons for dismissing the appeal as follows:

“Having considered the evidence, the Board did not dispute the facts of the applicant’s story. However, it found that the alleged ill-treatment both individually or cumulatively, has not reached the level of minimum severity [28]; that there was no evidence that state protection will not be available if he returns to India [47]; and if internal relocation is necessary, it is viable for him to relocate to other cities such as Mumbai. [66]”

(b)  The Judge at §11 of the Judge’s Decision summarised the applicant’s grounds for judicial review as follows:

“… the applicant has raised that the Board’s Decision is unfair; that the Board had relied too much on source of news which was not official recognized or simply hearsay; and that it had asked him to answer questions that he was not in a position to offer any response.”

(c)  The Judge at §13 reminded himself that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  He recorded that the applicant during the hearing said that the Board’s Decision was not wrong;

(d)  The Judge at §14 cited Re Kartini [2019] HKCA 1022, that inter alia “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 …”;

(e)  The Judge then at §15 stated that in view of the applicant’s admission before him, the applicant’s grounds for judicial review (as set out in §11 of the Judge’ Decision) were insignificant;

(f)  The Judge ruled that the applicant had failed to show any realistic prospect of success in his intended challenge against the Board’s Decision. 

Appeal to this Court

6.On 3 August 2026, the applicant filed a Notice of Appeal against the Judge’s decision. He put forward grounds of appeal which challenged (1) the Judge’s failure to assess and scrutinize his claim, particularly on state protection and internal relocation; (2) the Board’s reliance on the COI and application of the “minimum level of severity” test and the court’s lack of consideration of those procedural complaints; (3) the Judge’s reliance on his admission that the Board’s Decision was “not wrong” and failure to give adequate reasons for refusing his application.

7.The applicant lodged written submissions on 7 September 2026.  The submissions contain background facts and political situation that purportedly relate to his home country and his claim.  It also contains general statements of high standards of fairness and legal principles, and a plethora of arguments against the Judge’s decision and the Board’s findings and assessment.  We will deal with these in more detail below.

8.At the hearing, the applicant only added that there are other politicians involved, and invited this Court to consider his case.

Discussion

9.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

10.Further, it is well-established that assessments of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini.  

11.We would first make some overall observations about the numerous grounds and arguments raised by the applicant in this appeal.  Firstly, the background facts and the basis of the claimed fear of political enemies in his home country bear no relevance to the facts of his claim.  He asserts therein that “If I go back to my home country I will be killed by my enemy”, that “Now the ruling government is my enemy who want to kill me”, that “The political situation in my home country does not support my life safety at this moment, I have no faith in the present government and police”, that “I was tortured brutally while in my country”, and that “I was tortured by my enemies who are now controlling the power of government in my country”, etc.  None of those bears any resemblance to his claim, which was that he would be harmed or killed by Harjit and Gurpeet for not letting them buy out his property and business at below market price.  Secondly, the applicant has not explained how the general statements and principles of law relate to or apply to his case or appeal.  Thirdly, the numerous criticisms levelled against the Board and the Judge are mostly vague, generic and general without any particulars.  They mostly do not properly engage the Board’s Decision or the Judge’s Decision.  Fourthly, to the extent that the applicant’s grounds of appeal and submissions contain matters that are raised for the first time before this Court, it is not open for the applicant to do so, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  

12.Specifically, the grounds and submissions are unarguable for the following reasons:

(a)  The grounds in the Notice of Appeal alleges that the Judge failed to scrutinise his claimed fear, the sufficiency of state protection and the viability of internal relocation.  These grounds are misconceived.  It is well-established that the court in its supervisory role does not consider his claim afresh.  The assessment of the risk of harm, availability of state protection and internal relocation is within the province of the primary-decision makers;

(b)  The applicant did not explain or elaborate on his ground that the Board had misapplied the “minimum level of severity” test.  In the present case, the Board had correctly set out the principles and the respective threshold tests required to be satisfied for protection under each of the applicable grounds[9]. The Board explained at [23] to [28] of the Board’s Decision that on the applicant’s own account, the alleged ill-treatment such as the threats, attacks and injuries sustained by him did not reach the minimum level of severity required for protection under persecution risk.  Those reasons equally applied to the torture risk and BOR 3 risk[10]. These are findings of fact open to the Board on the evidence it received and for the reasons it gave.  Contrary to the applicant’s argument, the Judge had given due consideration to the Board’s findings, and explained with adequate reasons why he found no basis to intervene[11]. We shall elaborate upon this further below; 

(c)  The complaint in the Notice of Appeal and his submissions about the Board’s reliance on the COI is vague and general.  The applicant has failed to identify which item of the COI was incorrect, outdated or unverified, or how they could have materially affected the assessment of the Board.  The Board had in fact duly assessed the relevance of the COI when considering whether state protection and internal relocation were reasonably available to the applicant; 

(d)  The complaint that the Board did not give the applicant sufficient time to arrange evidence to support his claim and his appeal is devoid of particulars.  In fact, the applicant was informed by the Board that he could adduce additional evidence to support his appeal[12].  He also confirmed with the Board the truth and accuracy of the evidence in the hearing bundle which he adopted, and that he had nothing to supplement or clarify[13];

(e)  Overall, the applicant’s submissions on the alleged hardship and danger in his home country cannot stand in the light of the Board’s finding that his claim had not reached the threshold required for protection under any of the applicable grounds;

(f)  In respect of the applicant’s complaint that the Judge relied on his admission that the Board’s Decision was “not wrong”:

(i)  This Court has on our own initiative called up and listened to the audio recording of the JR Oral Hearing.  The applicant attended the hearing in person.  He had the assistance of an interpreter.  The Judge asked the applicant whether he understood the Board’s Decision.  The applicant said that he did read it, but he did not pay much attention to that.  The Judge then summarised and explained the Board’s Decision to the applicant.  He explained that whilst the applicant might have his own views, the Board had to objectively consider whether the applicant’s claimed risk reached the level set by the law, and whether state protection and relocation were available to him.  It was in that context when the Judge asked the applicant whether he thought the Board was wrong, and when the applicant answered that he could not call the Board wrong;

(ii)  As this Court pointed out in Re Tolentino Analyn Ambrocio [2026] HKCA 1846, whilst the applicant did state his opinion that he could not call the Board wrong, we have serious reservation about the utility of asking a lay applicant such a question, and the value of the answer, whether in the affirmative or negative and that the Court will have cause to intervene if leave had been refused (or granted) simply on the views and opinions of an unrepresented non-refoulement claimant as to the propriety of the proceeding before the Board or its decision;

(iii)  However, having considered the Board’s Decision, the entirety of the Judge’s Decision, and the context in which the Judge enquired about the applicant’s view and opinion, we have formed the view that the Judge did not refuse leave only on the applicant’s view and opinion.  The Judge considered the Board’s Decision, the reasons the Board gave, and the applicant’s grounds for seeking judicial review.  In particular, the Judge summarised himself the Board’s reasons for dismissing the appeal.  The Board’s findings are in our view clear and detailed.  The Board was clearly entitled to form the views as it did on the questions of risk, state protection and relocation.  Those are matters within the province of the Board.  The Judge then noted that the applicant’s grounds as summarised by him at §11 of the Judge’s Decision were, in view of the applicant’s admission that the Board’s Decision was not wrong, insignificant. Based on all of the above, and in particular the findings of the Board, the Judge was entitled to conclude that the applicant’s intended judicial review had no realistic prospect of success.  The Judge has given sufficient reasons for his decision;

(g)  We add further that what the applicant asserted orally before this Court about the alleged involvement of other politicians is nothing but just his bare assertion.

13.For these reasons, the applicant’s appeal has no merit.  We dismiss the appeal.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 4047.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  Bharatiya Janata Party.

[7]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001574_2025_files/the_Board's_Decision.pdf

[8]  §§60 to 66 of the Board’s decision.

[9]  §§19, 21 and 29 of the Board’s decision (on persecution risk); §§48 to 49 of the Board’s decision (on torture risk); §§51 to 52 of the Board’s decision (on BOR 2 risk); §§55 to 58 of the Board’s decision (on BOR 3 risk).

[10]  §§50 and 59 of the Board’s decision.

[11]  §§8, 12 to 17 of the Form CALL-1. 

[12]  §7 of the Board’s Decision.

[13]  §8 of the Board’s Decision.