GUJJER SATNAM SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1410/2025

[2026] HKCFI 3815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1410 OF 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 November 2024 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of India who entered Hong Kong illegally on 15 September 2011 and was arrested by police on 4 November 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his in-laws for trying to divorce his wife, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis as in his torture clam and with additional basis of fear of being harmed or killed by the Chief Minister of Delhi and his people/supporters and/or the Indian authorities by posting a message on social media inciting people to rape the Minister’s daughter. He was subsequently released on recognizance pending the determination of his claim.

Relevant Factual Background

2.  The Applicant was born and raised in Village Kakrala, District Kathal, Haryana State, India. After leaving school he worked as a trucker driver to make his living, and in 2007 married his wife arranged by their respective families.

3.  The Applicant however did not get along with his wife that there were frequent quarrels and conflicts between them throughout the marriage, and after one particularly heated quarrel in 2011, his wife left to return to her parents’ home, but when the Applicant later suggested to have a divorce to end their marriage, she did not respond, while her father was adamant that there would be no divorce between them and threatened to have the Applicant killed if he dared to go ahead with his suggestion.

4.  To avoid further conflicts with his wife and her family, the Applicant therefore moved to Kolkata, and on 27 July 2011 he departed India for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim on that basis, and after it was rejected, he then sought non-refoulement for protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While released on recognizance pending the determination of his claim, the Applicant in 2012 read from the news in India about a girl being raped and killed by a gang of men on a bus in Delhi which shocked the country and the world, and that those men were subsequently convicted and sentenced to death except for one who was given a prison sentence of 3 years as he was then a boy under the age of 18 and was charged as a juvenile.

6.  However, upon that boy’s subsequent release from prison in 2015, the Applicant was upset to learn that he had in fact been provided with financial assistance by the Chief Minister of Delhi namely Arvind Kejriwal (“AK”) for his legal defense of the rape charge, and on 19 December 2015 while under the influence of alcohol and to vent his anger on the Chief Minister, the Applicant posted a message on Twitter to offer rewards to those who were to rape the Chief Minister’s daughter.

7.  His tweet subsequently provoked a wild reaction of condemnations and protests from the Chief Minister’s supporters and various women groups such as the Delhi Commission for Women (“DCW”) when one of its members Promila Gupta (“PG”) called for actions against the Applicant, and even though he did shortly thereafter delete the tweet, the Applicant continued to receive death threats on the social media.

8.  One day in June 2016 he was arrested by the Hong Kong police over a complaint being made against him about his Twitter account, and was taken to the Wanchai Police Headquarters where he was detained for investigations during the next 2 days during which he was told that the matter would be dealt with by the court, and that eventually he was released on bail on condition of reporting back to the police every month.

9.  In order to find out exactly what complaint had been made to the police that led to his arrest, the Applicant through his lawyer from DLS wrote to the police for such information, and although his request was subsequently refused by the police, and that he was never formally charged by the police in Hong Kong, given the many complaints and threatening messages made against him on the social media, the Applicant believed that authorities in India including the Chief Minister of Delhi as well as the DCW must have been involved in his arrest and police interrogations in Hong Kong over his earlier tweet posted on Twitter, and hence he also feared of being harmed or killed by the Chief Minister and his people and/or the Indian authorities if refouled to India, and accordingly included such basis in his non-refoulement claim.

Director’s Decision of 7 March 2017

10.  By a Notice of Decision dated 7 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risks of harm from his in-laws over his proposed divorce with his wife and/or the Chief Minister of Delhi and his people or the Indian authorities over his message posted on Twitter upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from his in-laws or the Indian authorities, that there is no evidence of any real intention of his in-laws to seriously harm or kill him other than just angry words and empty threats over what was essentially a private domestic dispute between him and his wife and her family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his wife or his in-laws to locate him, while his alleged risk from the Chief Minister AK and his people/supporters and/or the Indian authorities over his tweet or message posted on Twitter is not supported by any reliable evidence of any such intention from any of them to seriously harm or kill him other than just empty threats and in the absence of any formal charge being laid against him by the police or authorities in India, nor is it accepted that the general public in India would be able to identify him as the person who posted the said message on Twitter upon his return to India in large cities and away from his home district that it would similarly be difficult if not impossible for anyone to locate him.

12.  It would be relevant to note that in arriving at his decision as regard the Applicant’s claimed risks of harm from the Chief Minister of Delhi, his party and supporters as well as the Indian authorities, the Director did not take any real issue with his claim of having posted that message on Twitter that provoked those reactions in India and his arrest by the police in Hong Kong which led to his fear of being harmed or killed by those named above if refouled to India, but that the Director refused his such claim for non-refoulement protection primarily on the basis of his findings and observations on the materials and information submitted by the Applicant in the decision as follows:

“Fear of the Chief Minister, his party, his supporters and the Government of Delhi/India

30. You claimed to have involved in provoking rapist on twitter against the Chief Minister of Delhi’s daughter by using a twitter account named “garrysingh954”. Relevant news coverage is extracted from an article titled “Man provokes Twitterati to rape Arvind Kejriwal’s daughter, DCW member takes notice” published on Zeenews on 19 December 2015.

31. Your perceived fear originates from the Chief Minister of Delhi, his party, his supporters and the police department. Furthermore, you claimed to have received more than a thousand of notifications from twitter who threatened to kill you or trapped you in false case during the 2^nd Interview. If it is taken that @garrysingh954 is your twitter account, there were tweets which are accessible on the internet that criticized your words. For example, on 19 December 2015, @shettysarshan wrote that “Sick minded, need treatment urgently. Get well soon.” And @varung123 left another tweet by saying that “u demonstrated mind of a sick person. Please improve/be gud … Thx”. You also wrote that “yes Delhi police punishment me because of tweet and leave those do this.” These tweets were also posted to the twitter account of the Delhi Police. However, as you also wrote on your twitter on 21 December 2015 that “I said sorry already but I am happy now I see 1000 people more mentally like me …”, it is believed that the responses on your tweet were not one-sided and you were happy to have a thousand of like-minded people.

32. Given the facts that no Indian police, government authority or other party have ever come to your home in India and your family members there have no knowledge about your tweet on the twitter, no information can support that the Indian authorities are involved in the investigation on your case. Moreover, there is nothing to show that your arrest in Hong Kong was due to a complaint by the Indian authorities, or you are targeted by Kejriwal and his associates. In addition, if even the Indian police, government authority or other party do not have your home address, it further lowers the likelihood that the threats from other twitter users against you in the notifications will be materialized. Even though you asserted that there are possibilities of being falsely framed because of the notifications you received on your twitter; and there are possibilities of being treated unfairly after return, there are also avenues for you to complain and to seek justice. For instance, twitter has provided platform for its users to report abusive behaviour. The Supreme Court of India is also a key agent in protecting the freedom of speech on the internet and paragraph 40 has details.

33. When you were asked in the 2^nd interview if you have experienced anything personally against you from Kejriwal himself, his party members or his supporters, you only replied that they had got you arrested in Hong Kong. Apart from this assertion, there is no information that Kejriwal himself or his party have explicitly expressed to take revenge on you due to your tweets personally. Moreover, even if Kejriwal and his party members might hold government posts in Delhi, they are not law enforcers. Therefore, it is questionable if your speculation that they would arrest and kill you when you return to India is likely to happen.

34. Apart from Kejriwal, you perceived fear from Gupta who is a member of DCW, an official body in Delhi which is “constituted with the aim to investigate and examine all matters relating to the safeguards provided for women under the constitution and other laws … The jurisdiction of the Commission is within National capital Territory of Delhi.”, as described in its official website. According to the SCF, she wrote on the twitter that “Complaint Noted, The Tweet is been deleted but we will take action.” You had associated the “action” she took to your arrest in Hong Kong. However, as you also mentioned in the 2^nd Interview, there is no Indian police, government authority or other party coming to look for you in your home in India due to your tweet because they do not know your address. The jurisdiction of DCW is also limited in Delhi. It is unlikely that Gupta or the DCW had reported your suspected offence to the Hong Kong Police which in turn led to your arrest in Hong Kong.

35. In addition, there is no implication or meaning of threat in Gupta’s post and the action is not explicitly written as against you personally, which will cause you any bodily harm OR EVEN KILLED. During the 2^nd Interview, you were also given a chance to elaborate on the action you think Gupta or the DCW will take against you. You only answered that she works under the government ruled by Kejriwal. In reality, the DCW is acting under the constitution and other laws. According to Chapter III of the Delhi Commission for Women Act, 1994, “The Commission shall while investigating … have all the powers of a Civil Court trying suit …” In other words, DCW is an official agency acting according to constitution and laws in a manner of civil court. However, it cannot make arrest or handle criminal case. As a result, Gupta’s post on Twitter is not considered as a threat or intimidation against you and it cannot be established that the action taken by her or the DCW is unlawful.

36. Besides, according to a piece of news article published on 2 July 2016, it was reported that “The Hong Kong police have arrested a certain Garry Singh, who in December 2015 offered money to the public to rape Delhi chief minister Arvind Kejriwal’s daughter Harshita Kejriwal Newsd (name of news agency) has exclusively learnt from sources that although Singh is out on bail in Hong Kong, he is being monitored closely by authorities, who believe he is a suspected sex offender … SAP consultant Amit Kumar, who took on the responsibility of tracking down Garry, was in constant touch with Hong Kong officials for six months before hearing on June 30^th this year that they have nabbed the accused … He believes there is a 90% chance that the Hong Kong authorities will deport Garry to India. However, the Indian authorities are yet to take up the case …” It is not the purpose of this assessment to verify if you are “Garry Singh” because of the association from the twitter account name “@garrysingh954”. Even taken that you were that Garry Singh, the report reveals that neither Kejriwal nor Gupta is the informant to the Hong Kong Police, but an alleged SAP consultant named Amit Kumar. If the content of this report is true, the informant can be a third person who does not hold any official post in the Indian or Delhi Government.

37. At the government level, the Indian police or government authority have not yet approached your family in India. Moreover, when you were asked how you know the Indian authorities including the police have a lot of complaints against you, you only replied that there were complaints and that is why you were arrested. Taking your absence in India into account, your name was checked against the wanted persons list on the official website of the Interpol and your name is not on the list as at 6 March 2017. There is also no indication that you are most wanted by the Delhi police according to their official website as at 6 march 2017. As a result, no concrete information or evidence shows that you are a target of the Indian government.”

13.  In arriving at his such conclusion, the Director also considered and relied on those relevant COI referred to in [60] – [68] of his decision to find that that the Applicant would be expected to receive fair treatments and due process even if the Indian authorities were still pursuing on his case upon his return to India.

14.  On 21 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 June 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 October 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

Decision of 1^st Adjudicator of 4 October 2018

15.  In its decision the Board found the Applicant’s claim of fear of harm by his in-laws over his intended divorce with his wife merely a personal private dispute between them only without evidence of any physical threats or violence being inflicted against him, that on his own evidence there is a good prospect of settlement of their dispute between them, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his in-laws that it is not accepted that he would face any real risk of harm from his in-laws over his marital dispute with his wife, while his claim of fear of harm from the Chief Minister of Delhi (AK) and his people and/or the Indian authorities over his message posted on Twitter, the Board found that it was quickly deleted that on balance of probabilities that it was not persuaded that there would have been many responses to the message or that the Applicant had been threatened as claimed, and that there is no evidence that his subsequent arrest and interrogation by the police in Hong Kong was the result of anything to do with the Chief Minister of Delhi or the Indian authorities other than the Applicant’s own suspicions and speculations that it is not accepted that he would face any risk from them upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

First Leave Application for Judicial Review

16.  On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and while no ground for seeking relief was given in his Form or his supporting affirmation, this Court upon close scrutiny of the Board’s decision on 21 October 2022 granted leave to the Applicant to apply for judicial review of the decision upon finding it reasonably arguable that the Board erred in law in finding that the Applicant’s claimed risks of harm from the Chief Minister of Delhi or his people/ supporters or the Indian authorities were not supported by any credible evidence and/or that the Board failed to apply high standards of fairness in its assessment and determination of such claim and/or that the Board failed to make proper or sufficient inquiry into relevant COI in its assessment of such claim of the Applicant (HCAL 2138/2018 [2022] HKCFI 3207).

Decision of Second Adjudicator of 28 November 2024

17.  Pursuant to a subsequent joint application of the Applicant and the Director, the Court on 6 June 2024 ordered that the said decision of the Board be brought up and quashed, and directed that the Applicant’s claim and appeal be remitted to a differently constituted Board for fresh determination.

18.  By then the Applicant had been arrested for undertaking unauthorized employment in Hong Kong and was serving a term of imprisonment at Tung Tau Correctional Institution (according to him from 11 July 2024 to 17 April 2025), and from where he attended another hearing on 25 October 2024 before a second Adjudicator via video link and during which he complained of not being able to seek legal advice and of difficulty gathering his evidence due to his imprisonment, and that he was not of sound mind as he had been kept in prison. On 28 November 2024 his appeal was again dismissed by the Board which also confirmed the Director’s decision.

19.  In this decision[1] the Board similarly found no reliable evidence of any real intention of the Applicant’s in-laws to seriously harm or kill him over his intention to divorce his wife other than just angry words and empty threats, or that they would have the power or resource to locate him if he were to move to other parts of the country such as Delhi to avoid their threats, that there is no basis for his fear of being harmed or killed by the supporters of the Chief Minister of Delhi (AK) or the Indian police or government as it is unclear that those threatening messages that he received on Twitter in fact came from AK or his supporters, that no police or government officials had made any enquiries from his family in India as to his tweet made on Twitter which indicated of no evidence that the Indian police or government had decided to investigate the Applicant’s case let alone to arrest or kill him, while inefficiency and corruption may not be uncommon amongst the police force and other government officials, but that there have also been reforms going on in India to improve the efficiency and to combat corruption in the police force that the Board concluded that the Applicant will not face any risk of being subjected to any harm or ill-treatment if refouled to India that his claim failed on all applicable grounds.

Second Leave Application for Judicial Review

20.  On 19 June 2025 the Applicant again filed a Form 86 for leave to apply for judicial review of this second decision of the Board, but in his supporting affirmation of the same date he just repeated his claim as before and what had happened to him all these years in Hong Kong including being under lengthy detention and imprisonment but without putting forth any proper ground for his intended challenge other than just some bare assertions of not being given a proper screening interview for him to make his claim before the 2^nd Adjudicator which is factually incorrect as he did attend another hearing before the Board for his appeal albeit via video from the correctional institution where he was then serving his prison term.

21.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

22.  As the last day of the three-month period for him to file his Form 86 fell on 28 February 2025, the Applicant was therefore more than 3 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

23.  In the Applicant’s case, a delay of more than 3 months must be considered as very substantial and inordinate, for which he did not provide any specific explanation or reasons in his Form or affirmation, nor was he able to do so at the hearing of his application, other than the fact that he had been in prison and thereafter under the detention of the Immigration Department, and while accepting the difficulties that he had faced in the circumstances, given the availability of assistance from stationed welfare officers, I am not satisfied that the Applicant has provided a good or valid justification for his serious delay.

24.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge, but nevertheless high standards of fairness requires that the Court should again scrutinize the reasons given by the 2^nd Adjudicator for rejecting the Applicant’s claim, in particularly as to his claimed risks of harm from the Chief Minister of Delhi and his people/supporters and/or the Indian authorities, although one would expect that the 2^nd Adjudicator would have taken proper notes of the Court’s criticisms of his predecessor’s assessment of such claim, of which the 2^nd Adjudicator essentially gave his findings and reasons in the following paragraphs of the decision:

“44. The Petitioner also fears that he would be harmed or killed by the supporters of Kejriwal, and he would be arrested and killed by the Indian police and the Indian government.

45. After considering the evidence carefully, I find his fear has no basis.

46. First of all, it’s unclear if those messages the Petitioner received in his Twitter which threatened to kill him or to frame him in a false case came from Kejriwal’s supporters, let alone from Kejriwal himself.

47. Secondly, it is clear that no police or government officials had visited the Petitioner’s family in India, making enquiries about the Petitioner’s post in his Twitter. This indicated that there is no evidence that the Indian police or Indian government has decided to investigate into the case, let alone to arrest or kill the Petitioner.

48. The Petitioner did not think the police would help because of the influence and power of his in-law’s family. While it is true that as revealed in the country of origin information of India that inefficiency and corruption is not uncommon amongst the police force as well as other government officials, it is also true that there have been reforms going on in India to improve the efficiency on the one hand and to combat corruption on the other hand of the police force.

49. Therefore, after considering carefully all the evidence, I do not find that the Petitioner would be subjected to the kind of ill-treatment contemplated in BOR 3, had he been sent back to India.

50. Ill-treatment must attain a minimum of severity if it is to fall within the scope of BOR 3. Evidence suggesting that the Petitioner had never been attacked at all. Therefore, his claim under this heading also fails.”

25.  Given the facts that the 2^nd Adjudicator similarly did not take any issue with the Applicant’s claim of having posted that message on Twitter which led to the reported reactions in India and the resultant threats and protests from the public and various women groups, as well as his subsequent arrest, interrogations and detention by the Hong Kong police, and that the main target of the Applicant’s message on Twitter was against the Chief Minister of Delhi (AK), it appears that the 2^nd Adjudicator just brushed aside this claim of the Applicant simply on the bases that it is not clear that those threats indeed came from the Chief Minister or his people or the Indian authorities, that no police had then visited his family in India regarding his post on Twitter, and that there have been reforms going on in India to improve police efficiency and to combat corruptions, and that it seems to me that such assessments and determination were too simplistic and inadequate for the 2^nd Adjudicator to seemingly just rely on those previous findings by the Director instead of conducting his own independent assessments, and/or that they appeared to be based on various subjective assumptions and speculations of his own.

26.  Furthermore, and no less significantly, as those earlier assessments by the Director and the 1^st Adjudicator were clearly conducted some 6 or 7 years ago, and while it remained the primary duty of the Applicant to update when appropriate his claimed risks and/or the current country conditions, given the fact that he had been kept in prison and detention and without legal representation, high standards of fairness would in my view require the 2^nd Adjudicator to conduct his own consideration and assessment of the Applicant’s claimed risks, both then and now, by referring to the current relevant COI and latest situations in the Applicant’s home country: See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [52] –[55], but which the 2^nd Adjudicator somehow appeared indifferent to the current situations and was in my view wholly inadequate in his consideration and assessment of such claim of the Applicant.

27.  For these reasons I am of the view that the Applicant’s intended application for judicial review of this second decision of the Board is reasonably arguable on the grounds that the Board erred in law in its consideration and assessment of the Applicant’s claimed risks of harm from the Chief Minister of Delhi (AK) and his people/supporters and/or the Indian authorities over the message that he had posted on Twitter in (1) failing to conduct its own and independent assessment adequately or at all and/or that such assessment was based on its own subjective assumptions and speculations; and (2) failing to properly consider or at all relevant COI then and current situations in the Applicant’s home country, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

28.  In the premises, I am satisfied that there are merits in the Applicant’s intended application and accordingly extend time thereto, and grant leave to the Applicant to apply for judicial review of this second decision of the Board on the grounds as stated above, and direct that he shall within 14 days of this decision file and issue the originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1