MATHARU HARDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 241/2026, [2026] HKCA 928

On Appeal From [2026] HKCFI 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 241 OF 2026

(ON APPEAL FROM HCAL NO. 1124 OF 2021)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Lewis Law (“the Judge”) given on 2 March 2026[1] refusing to extend the time for the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review against the decision dated 20 April 2021 of the Torture Claims Appeal Board (“the Board”). By its decision, the Board dismissed the applicant’s appeal against the decision dated 11 October 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of India born in 1993. He entered Hong Kong illegally on 26 February 2015 and was arrested on 31 March 2015. On 16 April 2015, he was convicted of immigration-related offences and was sentenced to 15 months’ imprisonment. On 22 June 2015, he was interviewed by the Immigration Department for deportation proceedings, during which he lodged a claim for non-refoulement protection by written submission. His claim was based on the basis that if he returned to India, he would be harmed or killed by the family of his girlfriend Aman Kaur (“Aman”) because they oppose their relationship. Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have been set out in the Board’s decision.[6]

3.  The applicant filed his Form 86 on 10 August 2021, which was late by three weeks.[7] After considering the delay and the ground in support of his application for leave to apply for judicial review (that the Board had disregarded his dangerous situation in India), the Judge refused to extend the time for the application and dismissed his application for reasons given in [3] and [4] of the Form CALL-1. We will not repeat them.

This appeal

4.  By a Notice of Appeal filed on 12 March 2026, the applicant appeals the Judge’s decision to this Court. His stated grounds of appeal are essentially that (1) the applicant was not legally represented and had limited opportunities to present his case; (2) the Judge failed to address the arguable errors of law and reasoning in the Board’s decision; (3) the Judge did not provide sufficient reasons for his decision; (4) the Judge should have granted extension of time for his application given the short delay and his meritorious claim; (5) the Board erred in applying a higher standard of proof based on balance of probabilities which wrongly defeated his claim (at [77], [83] and [84] of the Board’s Decision); (6) the Board did not address issues of state protection and internal relocation, and failed to assess his risk on analysis of the country of origin information (“COI”); and (7) it is unfair and irrational for the Board to reject his case on credibility grounds and to treat his account as fabricated.

5.  The applicant has lodged written submissions in which he expanded on the grounds in the Notice of Appeal. We will deal with these in more detail below.

6.  At the hearing, the applicant indicated that he had nothing further to add to the written materials lodged.

Our reasons for decision

7.  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.

8.  We do not agree with the complaint that the Judge failed to address the legal errors in the Board’s Decision, or that the Judge failed to provide sufficient reasons for his decision.[8] In the first place, the applicant did not raise any grounds in support of his application for leave to apply for judicial review except to state that the Board had disregarded his dangerous situation in India. The applicant had not engaged with the reasons of the Board or identified any legal errors in the Board’s rejection of his evidence and claims. There is no basis to suggest that the Judge had failed to address any arguable errors of law and reasoning in the Board’s Decision. Furthermore, the Judge fairly accepted that the delay was short and that there was no prejudice to the parties if extension of time is granted. The application was refused on the basis of his unmeritorious claim, for the reasons given by the Judge at [3] to [4] of the Form CALL-1.

9.  The applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are satisfied that the Judge gave proper and adequate reasons for his conclusion and that the intended judicial review has no reasonable prospect of success.

10.  The applicant contended that he had limited opportunities to present his case and that he was disadvantaged because of the lack of legal representation. He also argues in his written submissions that there was language difficulty or barrier in this case.[9] As a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the proceedings (Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]). Further, the high standard of fairness required by law does not entail an interpretation service made available to an applicant at all times as he desires (Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20]). We also note that the applicant was assisted by the Duty Lawyer Service in completing his non-refoulement claim form which set out the details of his claim and his grounds for seeking non-refoulement protection. Although there was no screening interview, the applicant was legally represented in preparing his answers to the list of questions from the Director at the screening stage. The applicant also had the assistance of an interpreter at the hearing before the Board and the Judge. In any event, the applicant has not indicated what further matter or argument he would have put forward to support his claim if he had legal or language assistance in the process before the Board. In the circumstances, we do not accept that the complaint about non-availability of legal representation or language barrier is made out or that there had been procedural unfairness in the proceedings before the Board or the Judge.

11.  In his Notice of Appeal and written submissions, the applicant also made criticisms about the Board’s Decision. As mentioned earlier, it is not the role of this Court to examine the decision of the Board afresh as if it were a fresh application for judicial review. Nonetheless, for the sake of completeness, we set out our views below on why we think the applicant’s criticisms do not have any merit.

12.  The Board found that the applicant was not able to provide credible or reliable evidence to support the core basis of his claim. The Board found him to be a poor witness as his evidence was confusing, evasive, inconsistent and disorderly. His credibility was further undermined by the multiple discrepancies identified in material aspects of his evidence. These discrepancies included, inter alia, his confusion as to the two occasions of assaults, stating in his claim form that he saw Aman’s brother and was attacked by him but testified at the hearing that Aman’s brother had called him on his cell phone and yelled at him. He gave inconsistent account about the death of Aman, testifying that she had poisoned herself but stated in his claim form that she was killed by her family because of the applicant. He had very little memory of where and how he was pursued by Aman’s family subsequent to her death. All these led to the Board’s conclusion that his experiences of harm from Aman’s family were largely fabricated. The Board was not willing to attach credence to most of his evidence and therefore disregarded them. The Board concluded that the applicant had failed to establish his claim to the requisite threshold under any of the applicable grounds. As the applicant was not able to substantiate the core basis of his claim, the Board considered it unnecessary to address the question of state protection and internal relocation.

13.  The applicant argued that the Board, whilst correctly stated at [43] to [46] of its decision that the standard of proof in assessing the future likelihood of harm is lower than “balance of probabilities”, and correctly endorsed the test of “real risk”, has ultimately applied the wrong (and higher) standard of proof of balance of probabilities in assessing his claim, as evident at [77], [83] and [84] of its decision.[10]

14.  It is useful to set out the relevant principles relating to the standard of proof in non-refoulement cases. As stated by this Court in TK v Jenkins [2013] 1 HKC 526 at [28] to [31], one must recognise the difference between proof of two matters. The first is proving the risk of torture; in other words, the future likelihood or probability of the claimant being subjects to torture if he were to be refouled to a particular country. In this context, the standard of proof required is “more than a mere possibility” and need not to be “highly likely”. The second type of proof is in relation to whether there are substantial grounds for believing that the claimant would be in danger of being subjected to torture in the state in question. In this context, the decision-makers would need to make findings of primary fact, i.e. whether the applicant’s story was true or not. The standard of proof in relation to the finding of primary facts is the civil standard of “balance of probabilities”: TK v Jenkins (above) at [31].

15.  Therefore, in the present case, the Board was correct to find, on grounds of credibility, that the applicant has failed to prove on a balance of probabilities as to his past events, namely that he was subjected to assaults and threats by Aman’s brother and her family.[11] The Board has a duty to make findings of primary fact, and the standard of proof adopted is correct. The applicant’s contention that a lower standard of proof should be adopted refers to the Board’s assessment of the future likelihood of harm. In this regard, the Board was correct in embracing a lower standard of proof than “balance of probabilities”, which is effectively “more than a mere possibility” need not to be “highly likely”, as guided by this Court in TK v Jenkins.[12]

16.  We are mindful of the fact that the Board has referred to the standard of “balance of probabilities” under “State Protection”[13] and “Internal Relocation”.[14] We do not agree with the applicant that this means that the Board has imposed a higher standard in its assessment of state protection and internal relocation. The Board was of the view that it was not necessary to address these two aspects because the applicant had failed to prove his account of the events on balance of probabilities. In any event, having regard to the Board’s reasoning and analysis of the evidence, we do not see that the Board has misunderstood or misapplied the standard of proof or the requisite threshold of each applicable ground under which the applicant has to satisfy in order to be entitled to non-refoulement protection: [75], [76], [78] and [82] of the Board’s Decision.

17.  On the issues of state protection and internal relocation, the applicant argued that the Board should have addressed them properly or explained clearly why they did not arise.[15] The Board did acknowledge that the issues of state protection and internal relocation were some of the relevant factors in assessing whether the applicant has proved any one of the grounds for non-refoulement protection.[16] However, the Board ultimately found that the applicant’s core allegations, namely the risk of harm and threats from Aman’s family, was not proved even on the applicant’s own evidence. The discrepancies were numerous and significant such that his evidence was found to be fabricated. For these reasons, the Board was of the view that the applicant’s claim could not be made out even if there was an assessment of state protection and internal relocation. Since the applicant failed to make out his case on any of the available grounds, it was not strictly necessary for the Board to address the availability of state protection and the option of internal relocation. Afterall, it was the applicant’s evidence that he had relocated to Delhi and had managed to escape from harm. Therefore, the Board did not err in relation to the issues concerning state protection and the viability of internal relocation in this case.

18.  The applicant complained that the Board did not properly assess his risk of harm on the basis of the available COI, even though the Board recognised the importance of these objective materials and especially when credibility is disputed.[17] Although the Board’s assessment was not based on an analysis of the COI, it does not mean that the Board’s decision was erroneous or irrational. Essentially, the Board found that the alleged risk of harm and threat could not be substantiated on the applicant’s own evidence, there was no factual foundation upon which the Board could conduct a meaningful assessment on the COI. While the assessment of the evidence including the risk of harm on the basis of the COI is a matter for the Board, the applicant had the onus to establish his claims, which he failed to discharge. We see no error arising from this ground.

19.  The applicant further complained that the Board’s credibility assessment is arguably unfair or irrational. He argued that the Board relied heavily on his omissions, memory gaps and confusion in the evidence – which was overly rigid in a case where there was language difficulty, stress, delay and lack of legal representation.[18] We do not agree. In assessing the applicant’s credibility, the Board was mindful of the fact that it need not be absolutely persuaded on the certainty and truthfulness of the evidence adduced[19]. The Board was properly guided by the principles in assessing the applicant’s credibility[20] and gave cogent reasons and proper basis for finding that the applicant was not a truthful witness. In any event, assessment of the evidence including the applicant’s credibility is within the purview of the Board and the Director as primary decision makers. The court would not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the Board’s decision, which we can see none in this case.

20.  The applicant’s appeal is accordingly dismissed.