DARSHAN SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 357/2022

[2026] HKCFI 2640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 357 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 17 May 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 8 April 2022 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000357_2022_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 July 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant named the Board as both the putative respondent and the putative interested party in Form 86, when the Board should only be the putative respondent and the Director should be the putative interested party.

4.  Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by the police.  He also feared harm from the workers in the Congress Party, which was the ruling party in his village, who were connected to the police.  The applicant claimed that he took part in a demonstration near his residence organised by the Khalistan Commando Force in or about May 2019, which asked for the release of the political prisoners involved in the Khalistan movement.  He claimed to have been harassed by people connected to the Congress Party members and some plain clothes police officers who asked him to provide information about the organiser of the demonstration and threatened to arrest or kill him, or file false charges against him if he did not do so.

Disposal on paper

7.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  The applicant did not advance any ground for his intended judicial review in Form 86.  In his supporting affirmation dated 17 May 2022, the applicant asserted 3 grounds for judicial reviews, which are reproduced as follows:-

“1. The decision made by the Torture claims appeal board dated 8^th April 2022, is incorrect and is based on assumptions rather than the basic ground realities in India.

2. At paragraph 32. The adjudicator pointed that I had not provided any evidence to prove that I participated in the Khalistan movement, please note that Khalistan movement is categorized as a terrorist movement in India and it would have made it impossible for me to avoid prosecution if I was found in possession of any such documents/information. So my inability to provide such documents should not be held against me.

3. At paragraph 35, it should not be held against me if I thought before answering or I requested to repeat the questions.  The following points raised by the adjudicator have very clear and straightforward explanations but the adjudicator failed to clarify those during the hearing.”

Discussion

10.  First of all, Ground 1 as mentioned above is very general.  The applicant did not specify why the Board’s Decision was incorrect, what assumptions the Board had made and what basic ground realities in India that the Board had failed to consider.

11.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, such general allegations that the Board’s Decision was incorrect and was based on assumptions cannot help the applicant at all.

12.  As to the applicant’s assertion in Ground 2 that his inability to provide documents should not be held against him, if indeed he had justified reasons for failing to provide any documents in support of his claim, he should have explained it to the Board at the Board’s hearing.  As mentioned in paragraph 33 of the Board’s Decision, the applicant did not provide any justification or acceptable explanation to the Board at all.

13.  Further, as can be seen from paragraphs 34 to 41 of the Board’s Decision, the Board assessed the applicant’s credibility not solely on the basis that he failed to provide any documentary evidence.  The Board had considered the internal coherence of the applicant’s account, its reasonable consistency across time when recounted at various points, the level of details he was able to provide in relation to his alleged experiences, and any relevant and objective information.  The Board had also considered the applicant’s evidence at the hearing and found that the applicant was not telling the truth.  Thus, there is no merit in Ground 2 at all.

14.  Finally, the applicant specifically referred to paragraph 35 of the Board’s Decision and complained in Ground 3 that the Board should not hold against him because he thought before answering or he requested to repeat the questions.  However, the Board just laid out its observations of the applicant’s response in paragraph 35 with details as to what transpired at the Board’s hearing.  The Board did not hold against the applicant simply because he thought before answering or he requested to repeat the questions.  The Board in fact found that the applicant’s account, despite repeated requests for details and clarification, was vague and lacking in particulars.  There were also quite a number of suspicious allegations and some contradictions between what he said at the hearing and what was recorded in the hearing bundle.  Thus, the Board found that the applicant’s case was both vague and unbelievable in both his oral evidence and his written case.

15.  The Board was entitled to make findings of facts and to assess the applicant’s credibility by assessing the external and internal consistency of the applicant’s claims.  This court finds nothing wrong or unreasonable in the Board’s assessment made in paragraph 35.

16.  Significantly, despite the Board’s many concerns about the applicant’s credibility, the Board in fact assessed the applicant’s case by taking his case at its highest and on the basis that his story was true to the extent that the stated threats had been issued towards him (see paragraph 44 of the Board’s Decision).  Thus, even if the Board did hold against the applicant’s credibility because of his inability to provide supporting evidence, his need to think before answering the Board’s questions and his requests for the Board to repeat its questions, the applicant was not prejudiced at all.

17.  Hence, none of the matters that were raised in the applicant’s supporting affirmation constitutes a valid ground for challenging the Board’s Decision.

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.  Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 4 October 2021.  The applicant was thus given the chance to present his case to the Board in person. 

21.  As can be seen from the Board’s Decision, the Board found that the discrepancies in the applicant’s evidence were too numerous and impossible to be reconciled, thus rendering the evidence unreliable.  The Board did not find the applicant to be telling the truth.  The Board was only able to accept, at most, that the applicant might have participated in a demonstration in May 2019.  However, the Board found the applicant’s claim of having gone to the hospital for treatment was in doubt.  The Board did not accept the applicant’s stated threats and assaults by the plain clothes police officers and other people.

22.  Nevertheless, as aforesaid, the Board did explicitly state in paragraph 44 of the Board’s Decision that it had given consideration to the applicant’s case by taking it at its highest.  Even assuming that the claimed threats and assaults from those people were true, the Board still found that the applicant failed to substantiate a case for non-refoulement protection.

23.  The Board found that the applicant had never sustained any serious injury and the ill-treatment he received did not attain a minimum level of severity.  The people who threatened him did not have a real intention to kill him.  The applicant claimed that he was even threatened with revolvers putting at his head, which meant that those people had ample opportunity to seriously harm or kill him, but they did not.

24.  The Board also found that the applicant was able to move and stay in different parts of the country for several months without difficulty and without being located.  The applicant was even able to successfully leave India without any encounters or interruption by the Indian police or government.  The Board was of the view that these indicated that the people who were pursuing him did not have the intention to locate him, and that they were not as powerful as the applicant claimed.

25.  Further, the Board noted that the applicant had never availed himself of the protection from the police or other public authorities in his country.  It was not the case that he had been refused assistance by the authorities.

26.  Moreover, the Board found that even if the applicant would be subjected to any real risk of harm, his problem with those people was limited to his local area.  There was nothing to substantiate the claim that those people belonged to any political party or actually had any connection with the government.  The Board found no indication that the state was involved in, indifferent to or had provided any form of encouragement to those people on threatening or causing any harm on him.  The Board did not accept that the applicant would not be accorded appropriate protection if there was a genuine need for him to do so after his return to India.

27.  Lastly, the Board found that if it were necessary for the applicant to get out of the place where he used to live and to keep away from the people who were after him, the applicant, being in his mid-40’s with education and work experience, could relocate to other places in India as suggested by the Director in the Director’s Decision.

28.  Thus, the Board found that the applicant was not at a real risk of being tortured, ill-treated, persecuted or arbitrarily deprived of his life upon refoulement, and hence the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

29.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed.

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