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

HCAL 386/2025

[2025] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 386 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 February 2025 seeking leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 January 2025 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 October 2024 (the “Notice”) refusing his application for non-refoulement protection.

2.  The Applicant is an Indian national, now aged 42. He had previously entered Hong Kong in November 2004 and was deported on 3 October 2006 under a deportation order for life. He was arrested by the police on 20 December 2023 for having entered Hong Kong illegally. He was convicted and sentenced to a total term of 16 months’ imprisonment for breach of a deportation order and taking up employment when a deportation order was in force. He lodged a non-refoulement claim on 6 August 2024. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

3.  Before the hearing, the Applicant wrote to the Court and sought an adjournment to enable him to obtain documents from India to support his claim. This formed one of the grounds of his leave application. His request for adjournment or ground of application will be dealt with below.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims he could not return to India for fear of being harmed or killed by his wife’s family and for fear of being arrested by the Indian police for having absconded bail in a murder or manslaughter charge against him in India.

5.  The Applicant is widowed and has a daughter. He came from a Sikh family and was brought up in Tarn Taran in Punjab where Christians and Sikh could not marry each other. He studied up to Class 10 and had seven years working experience as a photographer and a taxi driver.

6.  He said he fell in love with a Christian girl in his home village with whom he later married (“his wife”). His wife’s father was a candidate from the Congress Party in the general election and was influential and powerful within the party and in the district where he lived.

7.  In 2013, his wife’s family came to know about their dating. His wife’s father was strongly against their continued relationship. His wife’s then family moved to a location about 100 kilometres away from his village. In July 2013, his wife told him that she had been beaten by her parents because of their relationship. They planned to meet in Amritsar where her family would go for a visit. They met as planned and eloped to Himachal Pradesh where they stayed for ten days. Then, they legally married at the Chandigarh High Court.

8.  When they were on their way back to Amritsar in July 2013, they were intercepted by two vehicles and assaulted by 10 to 12 individuals with baseball bats. The Applicant sustained a head injury with a cut near his right eye, while his wife suffered injuries to her right leg. They were hospitalised for two days in Amritsar. The Applicant suspected that the assailants were sent by his wife’s father.

9.  Upon their discharge they went to Tarn Taran Police Station to file a report. The police provided them with two guards. After two days, they were told that the guards were removed as a result of his wife’s father’s influence.

10.  In August 2013, his wife told him that her father had called her and threatened to harm them if they continued their relationship. Thus, they fled to Ludhiana. His wife gave birth to their daughter in August 2014.

11.  Towards the end of 2014, the Applicant’s father told him that he had disclosed their whereabouts to his wife’s father under pressure and advised them to move. They changed their names and moved to Chandigarh, where they lived for three years.

12.  In November 2017, his wife proposed to leave India and to start a new life in Singapore. They went to Amritsar to obtain the necessary documentation. One day, the Applicant went out to obtain the documents leaving his wife in the accommodation. When he returned, he found his wife dead by hanging from a scarf to the ceiling fan. He fainted from shock at the scene. He was arrested as a suspect for his wife’s death. He suspected his in-laws had deliberately framed him. He was held in custody for one year until November 2018 when he was granted bail because his daughter was young, only four years old then.

13.  Following his release, his in-laws persistently made false accusations against him, multiple times a week, leading to his arrest and physical abuse by the police. In August 2019, he could not endure the situation any longer and moved to Tarn Taran with his daughter. One day, he was attacked by two masked men with a machete. He suffered a wound that required 7 to 8 stitches. He reported the attack to the police. Other than taking notes, the police took no further action. He returned to Delhi and entrusted his daughter to the care of his father.

14.  The Applicant came to Hong Kong in September 2019. He was refused entry. Then, he went to Mainland China via Macau and stayed there for three and half years. In March 2023, he sneaked into Hong Kong and was later arrested. While in Hong Kong, he was informed by his father that the police in India are still searching for him intermittently. He doubted the ability of the Indian authorities to provide adequate protection for him and does not believe internal relocation feasible as his in-laws would be aware of his whereabouts.

15.  During the screening interview, the Applicant added that the two guards were police constables from Tarn Taran Police Station provided to him and his wife pursuant to the order of the High Court of Punjab and Haryana at Chandigarh upon their petition for protection made after the attack on their journey back to Amritsar (see paragraph 8 above). He also added that the post mortem report indicated that his wife died by hanging herself from the ceiling. Hence the murder charge against him was amended to manslaughter, which includes provoking someone to commit suicide. He had a copy of the report but had not brought it with him to Hong Kong.

Finding of the Board

16.  The Applicant testified before the Board. The Board found multiple and significant inconsistencies among his testimony he gave before the Board, his evidence in his NCF, the screening interview and his written signification. A glaring inconsistency is that in his earlier written signification, he originally claimed that he feared being harmed or killed because of religious problems and not because of his in-law’s threat and objection to his relationship with their daughter. Another significant inconsistency is about the date of his marriage and the attack on him and his wife on their way back to Amritsar from Chandigarh after the marriage. In his NCF, he said that he and his wife made a report of the attack to the Tara Taran Police Station and the police provided them with two guards for their safety. At the screening interview, he said that the officers were provided pursuant to the order of the High Court of Punjab and Haryana upon their petition for protection following the attack. He had earlier produced a four-page photocopy of part of that petition which was allegedly prepared by his counsel. The copy petition was dated 16 June 2013 and indicated that the order was issued on 17 June 2013. The Board was concerned why a petition made on 16 June 2013 could have referred to the judge’s direction to the registrar to forward his order made on the following date to the police. Apart from that, when challenged with the discrepancies as to the date of the attack during the screening interview, the Applicant tried to reconcile the difference by changing his evidence that his marriage took place on 15 June 2013 instead of 15 July 2013. However, according to his NCF, he was not with his wife on 15 June 2013. His wife had moved with her parents to a location 100 kilometres away from the Applicant’s village and then they planned to meet in Amritsar in July 2013 and elope.

17.  The Board was also concerned that the Applicant was able to leave India on 4 September 2019 using his Indian passport without encountering any problem. His explanation was that his agent who arranged the journey for him had bribed the immigration officer. Apparently, that explanation was not accepted by the Board. The Board was also concerned that he did not apply for protection during his three and half years’ stay in Mainland China and his five months’ stay in Hong Kong before his arrest. There are other less significant inconsistencies or concerns which may be explained by his evidence in the screening interview or his testimony, if such evidence was accepted.

18.  On the totality of the evidence, the Board did not find the Applicant’s evidence credible. It was not persuaded, even to the low standard required, that there was a threat of harm against him from his wife’s family. As he had never been subjected to any harm or ill-treatment in the past which reached the degree of severity required to establish a non-refoulement claim, it found he had also failed to establish that he would face harm or ill-treatment, if refouled to India. On the basis of authoritative and credible country of origin information (“COI”), the Board was satisfied that reasonable state protection will be available to the Applicant on his return to India against such harm or risk of harm, should it materialise. It also noted from the COI that the Indian government had set up official channels such as the Ombudsman’s Office, the Central Vigilance Commission, National Human Rights Commission and the Department of Administrative Reforms an Public Grievances for public complaints to be lodged when the police or government officials failed to handle their cases properly, or had acted illegally. He can also approach a higher police authority if the local police failed to protect him. Hence, the Board found reasonable state protection is readily available to the Applicant on his return to India.

19.  As for his fear of arrest for absconding bail, the Board drew a distinction between a person fleeing from persecution and a person fleeing from punishment for an offence. The former is a victim or potential victim of injustice entitled to protection, while the latter is a fugitives from justice who is not so entitled. On the Applicant’s own evidence, he has an outstanding manslaughter charge against him pending in India and he has absconded from bail, he is a fugitive from the law. There is nothing in the evidence to suggest he may not have a fair trial in India. The Board held that he is not entitled to protection under the USM.

20.  Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM. Hence, the Board dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

21.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

22.  The Applicant did not advance any grounds of application for judicial review in his Form 86 or in his supporting affirmation. At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about procedural unfairness or irrationality, but advanced two grounds of application based on error of law.

23.  First, he complained that he was not legally represented at the screening interview. The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance. But that high standard does not require that he be provided with legal assistance throughout the entire non-refoulement procedures. It was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11] nor in the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved. Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage which is the most important stage in the non-refoulement process. It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview. During the screening interview, the claimant participates in the joint endeavour with the immigration officer in establishing his claim for protection and his legal representative presents his claim to the immigration officer and makes submissions on the law and the fact on his behalf. Thereafter, legal representation in the appellate proceedings are of less importance for this purpose because all benefits that legal assistance and legal representation could have afforded the claimant are contained in the written submissions, the NCF and answers in the screening interview given under legal advice. Unless the legal representative advises appeal, the legal assistance stops. In view of the limited resources available, legal assistance could only be provided with reasonable proportionality. Public funds could not provide legal assistance for subsequent appellate proceedings which the claimant’s own legal representative does not recommend. The high standard of fairness is deem attained under such circumstances. If the claimant wishes to proceed further, he may do so on his own. All the benefits that legal representation could have afforded him are contained in the hearing bundle before the Board. His interests are taken care of by an independent board, the law and the high standard of fairness. He would not be prejudiced due to lack of legal representation.

24.  Upon further enquiries with the Applicant, he admitted he had legal consultation before he filled in the NCF and he was legally represented by counsel during the screening interview. The Court therefore is satisfied that the high standard of fairness was attained. There is no substance in this ground of application.

25.  Second, the Applicant said he wanted an adjournment to enable him to produce more documents to support his claim. He produced a number of documents which he had obtained before this hearing. These are photocopies of unverified authenticity. The first one purports to be a certificate from the Health and Family Welfare Department certifying the death of Piara Singh on 5 February 2024. The Applicant claimed that the deceased was the person who helped him to obtain bail. He suggested that the deceased’s death evidenced the conspiracy to persecute him. The suggestion is highly speculative. The certificate does not even certify the cause of death which is necessary t support an affirmation of non-natural or non-accidental death. Even if this certificate is authentic, the event occurred after the date of the Decision. True or false, this event could not form the basis of any criticism of the Decision

26.  The second document purports to be a page from a bundle of document, probably the front page, showing the Applicant’s name as a petitioner in a criminal action and that he was in custody at the time. It is dated 25 October 2018. The Applicant relied on this document to support his allegation that he was on bail for the offence of manslaughter of his wife. Seemingly, this fact was accepted by the Board, but the Board held that being a fugitive from justice he is not entitled to non-refoulement protection. Hence, authentic or not and whether it was produced at the hearing of the appeal, this document does not support the Applicant’s claim.

27.  The third document is a collection of newspaper cuttings in 2017 or 2019 or an unknown year. The cuttings are in Punjabi. The Applicant had not provided English translation. He said these newspaper cuttings evidence his wife’s murder. Google translation indicates that they are reports about gold export, debt market, spectrum auction, a consumer court’s ruling, inspection by education advisors, recent conversations with farmers, change of names etc which have no bearing on the Applicant’s wife’s murder, though the Court could not place reliance on the translation. Seemingly, his wife’s death was accepted by the Board. For same reason as stated in the preceding paragraph, this collection of documents do not support the Applicant’s claim.

28.  The Applicant was asked what other documents he has in mind to obtain by the adjournment. His only reply is that he wanted to obtain documents to support his claim. He could provide no specifics or particulars of the documentary evidence he has in mind to obtain. By the time of the hearing before the Board, seven years have lapsed. If there are any useful documents that would support his claim, he would have obtained them or been able to identify them. His request for adjournment is just a fishing exercise.

29.  In conclusion, none of the documents he produced could support his claim. One is about an event which occurred after the Decision was made which could not be used to criticise the Decision. It was intended by the Applicant to support a speculation. For reasons as explained, the other documents would serve no purpose. The Applicant could not identify any particular documents which he wishes to obtain by the adjournment. Hence, his application for adjournment is refused. Insofar as the adjournment is a ground of his leave application, it is unarguable. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which this Court will turn to in the following section.

Overall scrutiny

30.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claim. The Applicant’s claim is founded on the threat of death by his wife’s family, particularly her father. The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. Because of the multiple and significant inconsistencies in his evidence, the Board found him incredible. It found he had failed to prove, even to the low standard required, that there is a threat of harm or death against him from his wife’s family in India and a real chance that he will be harmed or killed, if refouled. As the Applicant bears the burden of proving his claim, such a finding is fatal. The Board did not stop there. It also assessed his claim on the basis of the case as he asserted. Even on the basis of his evidence, the Board found that there was no factual basis to support his claims for non-refoulement protection under any of the four applicable grounds under the USM. As for his fear of arrest for having absconded bail and the subsequent prosecution for manslaughter of his wife, the Board found on his own evidence that he has an outstanding manslaughter charge against him pending in India and he has absconded from bail, he is a fugitive from the justice and not a victim of injustice. He is not entitled to protection under the USM.

31.  These are mixed finding of law and of fact. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. The Court could detect no errors of law or procedural unfairness in the Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court is satisfied that the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

32.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

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