MAHAL HARPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3/2021

[2026] HKCFI 2792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3 OF 2021

  Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of India who had previously entered Hong Kong under different false identities and was invariably repatriated after his subsequent arrest by the police again on 25 January 2006 arrived in Hong Kong under his present identity and with permission to remain as a visitor up to 8 February 2006 when he did not depart and instead overstayed, and was arrested by police on 27 February 2006 for possession of various false identities, and for which he was subsequently convicted and sentenced to prison.  After his discharge in July 2006 and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by the family of a fellow Indian by the name of Harman Preet for having assisted the police in Hong Kong in their murder charge against Harman Preet.  The Applicant was subsequently released on recognizance pending the determination of his claim.

Background of Applicant’s Claim

2.  The Applicant was born and raised in Village Sultan Wind Pati Jallah, District Amritsar, Punjab, India.  After leaving school he worked as a farmer in his home village to make his living, and got to know and befriended Harman Preet and his father Dilbag who was a popular singer in Punjab and ran some music business promoting musical events in Amritsar.

3.  In January 2002 the Applicant first came to Hong Kong under the identity of Avtar Singh through a travel agency which promised to arrange him for some job in Italy, but shortly thereafter his handling agent disappeared with his passport, and subsequently the Applicant was arrested by police and was repatriated back to India in March or April 2002.

4.  Upon returning to India he asked the agency for a refund of the fees that he had paid, but was instead offered another job in Italy, and for which he was given another passport under another identity of Jagjit Singh for him to again travel to Hong Kong in transit, which he did in June 2002 together with several other men arranged by the agency including Harman Preet, and together they were arranged to stay in the Chung King Mansions in Tsimshatsui, Kowloon.

5.  While waiting for their flight to Italy, one day in August 2002 an Indian woman guest was found murdered inside the Chung King Mansions, and that Harman Preet was subsequently arrested by police and charged for her murder, while the Applicant was also charged for assisting an offender, of which he then pleaded guilty, served his sentence and became a prosecution witness against Harman Preet.

6.  While remanded in custody waiting to testify in the trial of Harman Preet, the Applicant was visited twice by Harman Preet’s father Dilbag who flew into Hong Kong from India to ask him not to testify against his son or else it would not be good for him in some menacing tone, and of which the Applicant subsequently informed his handling police officer.

7.  Upon returning to India, Dilbag also came to the Applicant’s family in Amritsar on several occasions to ask his parents to tell the Applicant to withdraw his witness statements against Harman Preet or else bad things would happen to the Applicant, while the Applicant also heard that the other eye witness for the Harman Preet’s trial had disappeared before the trial after having returned to India, of which he suspected that it had something to do with the threats from Dilbag and his people.

8.  Nevertheless, the Applicant did eventually give evidence for the prosecution in the trial of Harman Preet who was subsequently convicted of the murder and was accordingly sentenced to prison in Hong Kong and later committed suicide in prison, and meanwhile the Applicant was repatriated back to India in October 2004 where he stayed in Kolkata as he was afraid to return to his home village in Amritsar after being told by his parents that Dilbag had been elected a village head and had sent his men everywhere looking to kill him in revenge for his son’s conviction in Hong Kong.

9.  However, as he missed his family very much, the Applicant one night secretly returned to his home village but hid in a friend’s place in the hope to later meet up with his family, but before he managed to do so the Applicant was told by his friend that Dilbag had again sent men to his family’s home looking for him, and during which his parents and sister were attacked by those men that they were subsequently all taken to the hospital for medical treatments that his father had subsequently lost his right eye and that his sister had also been raped by those assailants.

10.  As a result the Applicant fled to Delhi to hide in another friend’s place, but one night while walking on the street he was attacked by several unknown men with empty bottles until they were intervened by others, and that the Applicant was subsequently taken to the hospital for medical treatments for his injuries, and of which he suspected that those men were sent by Dilbag to kill him.

11.  Later when he heard that Dilbag had also brought some false charge of human trafficking against him by filing a First Instance Report (“FIR”) to the police, the Applicant feared that it was no longer safe to remain in India, and so with the assistance of a friend who arranged for him to work abroad, the Applicant on 17 November 2005 departed India for Thailand, during which he also took trips to Hong Kong and Mainland China under different identities.

12.  On his last trip to Hong Kong on 25 January 2006, the Applicant subsequently overstayed, and was arrested by police on 27 February 2006 for the offence of possession and use of faked identities and passports, and for which he was convicted and sentenced to prison.

13.  Upon his discharge from prison in July 2006 and was referred to the Immigration Department for deportation, the Applicant then raised his torture claim which he subsequently withdrew in May 2012, and instead he sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 31 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

14.  While released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 12 July 2009 for another criminal offence, and for which he was again convicted and sentenced to another prison term until his discharge on 14 November 2013.

Director’s Decision            

15.  By a Notice of Decision dated 10 September 2018 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”).

16.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Dilbag and his family upon his return to India in the absence of any reliable or credible evidence that Dilbag or his family had ever carried out any threats or attacks on the Applicant or his parents or siblings other than his own bare assertions or speculations, that those supporting documents including alleged charges and FIR made against him as submitted in fact show that those charges were either dismissed or withdrawn and with nothing to show that there were any active case against him in India, that in any event it was a private and personal dispute between him and Dilbag and 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 even if Dilbag did bring any false charges against him that under the law as a citizen that the Applicant would be entitled to due process with the rights to legal representation to defend such charges in a court of law without fear, and that reasonable internal relocation alternatives are also available in India with a large population of 1.2 billion people spread across a vast territory of more than 3 million square kilometers 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 such as Delhi or Kolkata where it would be difficult if not impossible for Dilbag or his people to locate him.

Appeal to Board

17.  On 24 September 2018 the Applicant via his lawyer from DLS lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 5 and 24 of June 2020 with his lawyer before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 9 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

18.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Dilbag that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further and generally undermined by his previous illegal entries into Hong Kong with false identities and his failure to raise his claim upon his subsequent return to Hong Kong in May 2005 until months later in February 2006 and only after his arrest by the police that he raised his torture claim but which he withdrew in 2012 and then sought non-refoulement protection on the same basis, that in any event his claimed risk of harm from Dilbag arose from a private and personal dispute between just the 2 of them only over his involvement in the conviction of Dilbag’s son in Hong Kong without any official involvement that state or police protection would be available to the Applicant upon his return to India, and that relevant COI also show that under the law and constitution of India the Applicant would be entitled to due process and to defend any charges with legal representation in a court of law 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 Dilbag or his people that his claim for non‑refoulement protection failed on all applicable grounds.

Judicial Review of Board’s Decision   

19.  On 4 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge which can be summarized as follows:

(1)   That the Board erred in finding that he was not a reliable witness because he had used passports of different identities in the past but ignored the real fact that he did give evidence in a murder trial in Hong Kong which led to threats being made against him in his home country by the family of the accused in particularly his father Dilbag;

(2)   That the Board erred in rejecting the credibility of his claim on the basis that his case was essentially relying on hearsays about him and his family being threatened and attacked by Dilbag and his men when the fact is that his son was indeed convicted in Hong Kong and for which Dilbag blamed the Applicant which was clearly the factual basis of the Applicant’s claim;

(3)   That the Board wrongly ignored the fact that there is still a pending criminal case against him in his home country that he is a wanted man by the Indian authorities that if refouled he would be at risks of being arrested and tortured by the police and/or killed by Dilbag in revenge for his son’s conviction and subsequent suicide in Hong Kong;

(4)   That the Board wrongly rejected his medical reports about his mental distress that caused him to withdraw his torture claim.

20.  At the hearing of his application, the Applicant also put forward his skeleton submissions with various authorities and with the following arguments in support of his above grounds:

(1)   Error of law – Misrepresentation of persecution risk as a “personal dispute” in that the Adjudicator failed to recognize that the Applicant was targeted for having given evidence in a murder trial as a prosecution witness which put him in a particular social group of witnesses who have given evidence against powerful individuals that if refouled to his home country that he will clearly face persecution risk from the family of Harman Preet in particularly his father Dilbag who is the village head and with powerful political connections, and hence the Adjudicator applied the wrong legal test for persecution risk in the Applicant’s case;

(2)   Irrationality – Unreasonable findings by the Board that state protection exists in India and that the Applicant can safely relocate internally are Wednesbury irrational and contrary to binding Court of Appeal authority after having accepted that a false FIR against the Applicant has remained pending thereby placing him on a police watch list, that the police also refused to register complaints by the Applicant’s family after violent attacks on them, that the Applicant’s father was detained for making complaints, and that his relatives were also harassed to provide information as to his whereabouts, all of which are clear evidence of state complicity, while the fact that he has no Aadhaar Card makes him easily identifiable that show such findings by the Board simply defy logic;

(3)   Procedural unfairness – Unfair and improper treatment of evidence by unfairly criticizing the Applicant for failing to produce written agreements with travel agents while ignoring the reality that illegal migration from Punjab is arranged through informal networks where written documentation is rare;

(4)   Error of law – Selective credibility assessment of the Applicant’s claims by placing disproportionate weight on the Applicant’s past use of different identities provided by his agents in India without his control as being essentially a victim of human trafficking while failing to adopt a holistic assessment of the credibility of his claim based on the facts that he was a prosecution witness in a murder trial in Hong Kong;

(5)   Breach of Article 3 of the Hong Kong Bill of Rights in the Board’s failure to find that there is a real risk of the Applicant facing a real risk of torture or inhuman or degrading treatment if refouled to India.         

Legal Principles

21.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Analysis and Discussions

22.  In the present case, the Applicant’s complaints of the Board’s decision as set out above can essentially be summarized into 2 main grounds over its assessments of (1) the credibility of his claim; and (2) the availability of state protection and internal relocation to negate or minimize his claimed risks upon his return to India.

Ground (1) : Credibility Assessment

23.  Firstly, in considering a non-refoulement claim, the Board, and for that matter the Director as well, is entitled to take into account various behaviour of the claimant stipulated under Section 37ZD of the Immigration Ordinance as damaging his credibility, and in the Applicant’s case those are set out in paragraphs 77 – 81 of the decision, and while it is not clear exactly which part of his evidence that the Board found suspicious or unreliable, nevertheless the Board did not appear to take any real issue with the credibility of his claim of fear of being harmed or killed by Dilbag in revenge for his part played in the conviction of his son Harman Preet in Hong Kong and his son’s subsequent suicide, as the Board found, correctly in my view on the factual basis of even the Applicant’s own case that such risk arose from his personal dispute with Dilbag (see [86] of the decision), and hence whatever criticisms the Applicant may have on the Board’s credibility assessment, I do not find any of them to assist or advance his case for his intended challenge of the Board’s decision to dismiss his appeal essentially on its findings of the availability of state protection and internal relocation upon his return to India to negate whatever risk that may arise from his personal dispute with Dilbag, which thus brings me to the second ground of the Applicant.

Ground (2) : Assessments of State Protection and Internal Relocation

24.  Firstly, on the factual basis of the Applicant’s own case that Dilbag was an ordinary citizen albeit a retired police officer and a famous Punjab singer who had appeared on TV shows and concerts as well as a village head in the Applicant’s home district (see [37], [41] - [43] of the Board’s decision), and hence in the absence of any evidence that Dilbag was somehow also a state actor of the Indian government or authorities, the Board was in my view correct to find in the absence of any official involvement that state protection would be available to the Applicant to negate or minimize whatever risk that may come from Dilbag upon his return to India.

25.  As for the internal relocation alternative, the Board was again in my view correct to find it available to the Applicant given the private nature of the risk arising from his dispute with Dilbag, and that it is not possible for Dilbag as an ordinary citizen and without any access to state resources to be able to locate the Applicant through the Aadhaar Card (see [83] – [84] of decision) or by any other means given the large size of both the population and territory of India.

26.  As for remaining issue of the Applicant’s claimed fear of being harmed or tortured by the police due to the FIR issued by Dilbag of some fake human trafficking case against him, apart from the fact that the Applicant himself claimed to have alibi evidence to prove his innocence as he was not in India at the material time when the alleged offence was committed, and that his co-accused had also been acquitted from the offence (see [62] of decision), even if the charge brought against him were still pending and for which the Applicant risks being arrested by police upon his return to India, the Board did find from relevant COI that his human rights will be protected by the law and the constitution of India to defend such charge in a court of law with legal representation that it is not accepted, again correct in my view, that the Applicant will face any real or substantial risk of ill-treatment or torture by the police or the Indian authorities upon his return to India.

Disposition

27.  For the reasons given I do not find any of these grounds put forward by the Applicant reasonably arguable for his intended challenge of the Board’s decision which was made with the benefit of hearing him in his oral evidence as well as submissions made on his behalf by his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

28.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim from Dilbag is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013]

29.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

30.  As I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application.

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