MAHAL HARPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 517/2026, [2026] HKCA 1227

On Appeal From [2026] HKCFI 2792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 517 OF 2026

(ON APPEAL FROM HCAL NO 3 OF 2021)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 19 May 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 October 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 September 2018.

2.  The Applicant is a national of India, and has a history of entering Hong Kong with passports under false identities.  The Applicant alleges that, if refouled to India, he will be harmed or killed by a man named Dilbag Singh (“Dilbag”), who was a retried police officer and also a popular singer in Punjab, India, because the Applicant had testified as a prosecution witness by the name of “Jagjit Singh” in the murder trial of Dilbag’s son, Harman Preet, in a High Court case, HCCC 7/2003 (“the High Court Case”)[1]. According to the Applicant, Dilbag blamed the Applicant for the conviction of his son for the murder charge and his son’s committing suicide while serving a prison sentence in Hong Kong in 2014[2].

3.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing his appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§1-14 and 18 of the CALL-1 Form).  We do not propose to repeat them here.

4.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§22-29 of the CALL-1 Form.  In gist, the Judge considered that the Applicant’s intended grounds of review could be boiled down to two complaints, one directed at the Board’s assessment of the credibility of his claim, and the other directed at the Board’s findings on the availability of state protection and feasibility of internal relocation.  The Judge rejected both complaints, and held that there was no reasonably arguable basis to disturb the findings of the Board.  

THE APPEAL

5.  On 21 May 2026, the Applicant filed a Notice of Appeal against the Judge’s decision.  In a document titled “Applicant’s Grounds of Appeal” exhibited to his affirmation of the same date, the Applicant advances 4 grounds of appeal, which may be summarised as follows (respectively “Ground 1” to “Ground 4”):

(1)  The Judge erred in law in failing to properly apply the legal principles in the case of Gurinder Preet Singh v Torture Claims Appeal Board [2022] HKCA 587 to determine the issue of the viability of internal relocation.

(2)  The Judge erred in law in assessing the Applicant’s claim with reference to BOR 2 risk[3] and BOR 3 risk[4].

(3)  The Judge erred in law in holding that the Applicant’s dispute with Dilbag was personal in nature.

(4)  The Judge erred in failing to carry out a holistic assessment of the Applicant’s credibility.

6.  In his written submission lodged on 18 June 2026, the Applicant largely repeats the assertions raised in his affirmation. He also advances an additional ground of appeal, namely, that the Judge erred in failing to address or remedy the procedural unfairness arising from the Board’s treatment of his evidence relating to his mental condition and the persecution suffered by his family, as well as from the Board’s unreasonable demand of him to produce documentary evidence to prove his allegations[5] (“Proposed Ground 5”).

7.  At the hearing of the appeal, the Applicant submitted to the Court a 2-page document titled “Appellant’s Hand-Up Note on Key Issues” dated 9 July 2026 which elaborates on Grounds 1 and 3.

DISCUSSION

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.  Further, 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, at §13.

Ground 1

10.  Under this ground, the Applicant’s main contention is that internal relocation is not a viable option open to him because (i) there was a First Information Report dated 14 November 2005 (“FIR”) issued against him as a result of a false charge of human trafficking filed by Dilbag against him, and (ii) he does not have an identification card issued by the Indian authority under a national system implemented by the Indian authority to record demographic and biometric information of Indian residents (“the Aadhaar System”), and his lack of such identification card has rendered him an easy target to be tracked down by Dilbag and the police within India.  The Applicant argues that the Judge in upholding the Board’s finding on the viability of internal relocation failed to consider or properly consider that the pending FIR effectively puts him on a “lookout list” of the Indian authority, and he is facing identification constraints imposed by the Aadhaar System, both placing him in a situation similar to the 1^st applicant in the Gurinder Preet Singh case in which the Court of Appeal allowed the appeal of that applicant and granted leave to apply for judicial review.

11.  We do not consider Ground 1 to have merits.  The present case is plainly distinguishable from the Gurinder Preet Singh case on the facts.  Unlike the 1^st applicant in that case who had been denied immigration clearance at the airport when he was about to travel abroad, the Board in the present case found that the Applicant faced no difficulties in passing through the immigration checkpoint when he departed from India in September 2005.  Prior to that departure, he had also travelled from India to nearby countries or regions since May 2005 (see §105 of the Board’s Decision). Further, the Board found that the existence of a false charge against the Applicant had little bearing on the assessment of the future risk of harm in this case because he could prove his innocence with alibi evidence and through an independent judicial system in India with legal representation (see §§88 and 106 of the Board’s Decision).  It does not appear to us that there is any reasonably arguable basis to show that the Applicant was unfairly targeted by the Indian authorities because of the false charge filed by Dilbag or under the alleged influence of Dilbag on the Indian police.

12.  His complaint in relation to the Aadhaar System is misconceived.  In the Gurinder Preet Singh case, the Court of Appeal was satisfied that it was reasonably arguable that the Board’s conclusion on the issue of internal relocation was unreasonable in the public law sense because there were materials showing that the Board in considering whether the Aadhaar System was compulsory or not had failed to take into account relevant matters or had taken into account irrelevant matters (§18).  In the present case, the Applicant has failed to point to any relevant materials which the Board ought to have considered but did not consider, or any irrelevant materials which the Board had considered when determining the issue of viability of internal relocation.  

13.  In any event, the Board’s finding at §§83 and 84 of its Decision was that the Applicant would not be compelled to use an Aadhaar card, and even if he was compelled to have and use an Aadhaar card, he would not be located by Dilbag and the police in India because the Board was not satisfied that Dilbag would be able to gain proper access to the Aadhaar System for the purpose of locating him.  The Applicant now asserts that he does not have an Aadhaar card, which in fact would further reduce the risk that Dilbag or the Indian police could locate him through the Aadhaar System as his information has not been recorded in the Aadhaar System.  As will be discussed further under Grounds 2 and 3 below, we do not find it reasonably arguable that there was any state involvement in his dispute with Dilbag such that Dilbag would be able to locate him in India through the Aadhaar System or the Indian police.

14.  There are two other minor points raised by the Applicant to contend that he could be located by Dilbag or the Indian police through the Aadhaar System that we should deal with.

15.  First, he complains that the Judge failed to consider or properly consider the finding of fact by the Board at §46 of its Decision that there was another prosecution witness in the High Court Case who had gone missing and never come back for the murder trial after returning to India[6]. However, contrary to his submission, it was not a finding of fact by the Board at §46 of its Decision that it was Dilbag who had caused the disappearance of the said prosecution witness.  What the Board did in that paragraph was merely to recite the Applicant’s allegations.  We are satisfied that the Judge had sufficiently dealt with the Applicant’s arguments on the issue of internal relocation with proper reasons set out for his conclusion at §25 of the Judge’s decision. 

16.  Second, the Applicant complains that Dilbag could locate him anywhere in India because Dilbag had the ability to find his family in their home village[7]. This complaint has no validity because, according to the Applicant, he had lost contact with his brother after 2006 and he did not know where his family lived after their relocation in 2006 (see §§66 and 68 of the Board’s Decision).  

17.  We see no valid basis to interfere with the Judge’s holding on the issue of internal relocation.

Grounds 2 and 3

18.  These 2 grounds may be taken together.  Under these grounds, the Applicant contends that the Judge erred in accepting the Board’s finding that the claimed risk of harm from Dilbag arose from a private and personal dispute without any state involvement and could be negated or reduced by state protection available to the Applicant.  The Applicant complains that the Judge failed to consider or properly consider the following matters:

(1)  the Applicant’s role as a prosecution witness against Dilbag’s son in the High Court Case;

(2)  the visits by Dilbag to Hong Kong before the murder trial to deliver threats to the Applicant that he should not testify against Dilbag’s son at the trial;

(3)  the suicide of Dilbag’s son while serving his prison sentence, reinforcing Dilbag’s hostility against the Applicant;

(4)  the disappearance of another prosecution witness in the murder trial;

(5)  an attack inflicted by Dilbag’s followers on the Applicant’s family members, causing his father to lose an eye, and the rape of his sister who later committed suicide;

(6)  the refusal by the Indian police to register a complaint by his family members after they reported the attack;

(7)  the arrest and detention of the Applicant’s father by the police for persistent complaints against the police for their failure to take action against Dilbag;

(8)  the false charge of human trafficking filed by Dilbag through the police against both the Applicant and his uncle Bua Singh (“Bua”), and the issuance of the FIR as a result; and

(9)  the harassment by the police on Bua with a view to persuading Bua to get the Applicant back to India[8].

19.  In our view, none of these complaints has merit. The matters relied upon make up a substantial part of the Applicant’s factual basis for his non-refoulement claim.  The Applicant’s contention that the Board had accepted these allegations to be truthful at §§32-70 of the Board’s Decision is misconceived.  In those paragraphs, the Board was merely setting out the Applicant’s case according to his own account of events.  The court when considering an application for leave to apply for judicial review in a non-refoulement case does not make a fresh determination of the non-refoulement claim.  It is only required to examine the Board’s Decision based on the applicable public law principles in light of the grounds put forward by the Applicant.  The Judge did not lose sight of the matters relied upon by the Applicant.  The Judge set out the background of the Applicant’s claim at §§2-14 of his decision, and summarised the Applicant’s arguments in support of the leave application at §§19 and 20 of his decision. 

20.  We do not consider the Judge erred in giving inappropriate or improper weight to any of the matters complained of by the Applicant.  In respect of points (1) to (3) above, the Judge correctly held that the Board appeared to have accepted the factual basis relied upon by the Applicant which gave rise to his dispute with Dilbag (see §23 of the Judge’s decision).  Point (4) is a mere speculation on the part of the Applicant.  In respect of points (5) to (7), the Applicant’s main allegation that the attack on his family members was caused by Dilbag was rejected by the Board as it was based on hearsay without proof (see §112 of the Board’s Decision).  As for point (8), we have dealt with the allegation of the false charge against the Applicant under Ground 1.  Insofar as the alleged false charge against the Applicant’s uncle is concerned, it was the Applicant’s case that his uncle was acquitted of the charge of human trafficking (see §62 of the Board’s Decision).  Lastly, in respect of point (9), it does not appear to us that the Board was satisfied on the evidence that Bua was treated in a hostile way by the local police or his treatment was a result of Dilbag’s connection with the local police.  The Board’s conclusion on the issue of state protection was arrived at after considering the relevant country of origin information.  The Applicant has not raised any complaint that the Board’s consideration of COI was erroneous.

21.  In all, we do not consider the matters relied upon by the Applicant under Grounds 2 and 3 can give rise to any valid basis to disturb the Board’s findings (with which the Judge agreed) that there was no state involvement in the Applicant’s dispute with Dilbag, and state protection would be available to him in India.  

Ground 4

22.  Ground 4 may be disposed of briefly.  By and large, it repeats the Applicant’s complaints that the Judge failed to properly consider the alleged attacks on his family by Dilbag or Dilbag’s followers, the disappearance of a prosecution witness in the murder trial, the issuance of the pending FIR against him, and other conduct by the Indian police.  We have considered the Applicant’s complaints, but do not find that they have merits.

23.  The Applicant also complains that the Judge failed to properly consider his cooperation with the Hong Kong police and the evidence he had given as a prosecution witness at the trial in the High Court Case, and the Judge erred in giving disproportionate weight to his past use of false identities[9].

24.  We do not consider this complaint to have any merit either.  As correctly pointed out by the Judge, the Board was entitled to take into account the Applicant’s use of false identification documents as one of the matters relevant to the assessment of the Applicant’s credibility.  As for the fact that he had given evidence as a prosecution witness in the High Court Case, the Board in fact pointed out that the Applicant lied to the court about his identity (see §77 of the Board’s Decision).  He testified under oath in the name of “Jagjit Singh” in the murder trial, but when he was arrested by the Hong Kong police on 27 February 2006, he admitted that his true identity was Mahal Harpreet Singh while all other names, including Jagjit Singh, were fake names (see §75 of the Board’s Decision).  The Judge did not err in principle or approach in refusing to interfere with the Board’s assessment of the Applicant’s credibility in the present case.

Proposed Ground 5

25.  This proposed ground is not part of the grounds of appeal advanced by the Applicant by his Notice of Appeal.  The Applicant is not permitted to rely on this ground in the present appeal by way of submissions without first obtaining leave to amend his Notice of Appeal. 

26.  In any event, we are of the view that this ground, which complains about procedural unfairness on the part of the Board, is not reasonably arguable.  The Board rightly pointed out at §§26 and 27 of the Board’s Decision that the burden of proof rested on the Applicant in his claim.  High standard of fairness does not mean the Applicant can simply sit back, or does not bear the burden of proving his case.  The Board was entitled to reject various allegations advanced by the Applicant on the basis that they were based on hearsay evidence, or lack of documentary evidence in support thereof.  There is no validity in the Applicant’s complaint that the Board rejected the Applicant’s medical records at §81 of the Board’s Decision solely on the basis of the dates of the documents, as it was clear that the Board considered the contents of those medical records and found that there was no supporting material for the alleged mental condition or illness that caused him to withdraw his torture claim earlier in May 2012.

27.  In conclusion, none of the grounds or proposed ground of appeal raised by the Applicant has substance.

28.  The Applicant’s appeal has no merits, and is dismissed. 

[1]  See §§37 and 41-44 of the Board’s Decision.

[2]  See §§51 and 67 of the Board’s Decision.

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

[4]  This refers to the 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.

[5] See §§29-33 of the Applicant’s written submissions.

[6]  See §5 of the Applicant’s grounds of appeal exhibited to his affirmation.

[7]  See §25 of the Applicant’s written submissions.

[8]  See §§7, 13 and 14 of the Applicant’s grounds of appeal.

[9]  See §20 of the Applicant’s grounds of appeal, and §34 of the Applicant’s written submissions.