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

HCAL 898/2021

[2026] HKCFI 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 898 of 2021

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.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.        

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 June 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 June 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 19 June 2018 (“Director’s Decision”) on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000898_2021_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by Rajesh (his former business partner) and Karnail (a police inspector in Mandi Gobindgarh and later an inspector in Patiala). The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 22 January 2026. The applicant attended in person.   

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 contained no grounds at all. In the supporting affirmation, the applicant provided a number of grounds, which were all about his alleged problems that he was facing.

6.  At the hearing, I asked him if he wanted to say anything in support of the Leave Application. The applicant stated that the Income Tax Department at home had filed many false cases against him. Those people wanted to kill him. As a result, his family at home had left him. He said he was very tired and asked this court to consider his case favourably.   

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board accepted that the applicant had a business disputes with Rajesh and was attacked by Karnail, Goldy and Happy (Rajesh associates) and had suffered physical injury. However, the Board found that the injury was not serious (Board’s Decision [63]). Regarding the complaint about torture by police, the Board found that the applicant’s evidence in this regard was not credible (Board’s Decision [71]). The Board found that the past ill-treatment did not reach the requisite level of severity. The Board also made an adverse finding against the applicant due to the applicant’s delay in not raising the non-refoulement claim in his previous earlier visits to Hong Kong.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I find that the Board’s Decision is arguably tainted by procedural unfairness, is irrational and unreasonable and that it does not meet the required high standards of fairness.

Assessment of risk of harm

9.  The Board concluded that the applicant would not face any risk of harm if refouled was based on its finding that the injuries the applicant suffered were not serious (Board’s Decision [63]). This finding appeared to have overlooked the various incidents of attacks and torture by the men of Rajesh and Karnail as well as by the police at their instigation which were set out in detail in the Director’s Decision.

9.1 Assaults by the gangs of Rajesh and Karnail:

(i)  In the First Incident  in June 2008, the applicant took 20 to 25 days to recover from the injuries inflicted by Happy, Jimmy and Goldy (Director’s Decision [9.25 and [6.28]];

(ii)  In the Fourth Incident on 26 May 2009, the applicant’s hand was mutilated and lost consciousness from the attack by Happy and 4 other attackers. The applicant was hospitalized for 5 days during which he underwent a series of surgeries (Director’s Decision [6.51][6.52][6.55][6.59]

10.  More importantly, the Director at the interview in fact photographed the applicant’s injuries that the Director set out in [18.1] of the Director’s Decision. The Director also considered a medical and injury report issued by the Punjab Health Systems Corporation on 26 May 2009. Since the Director did not dispute the past injuries, it was therefore decided that a medical examination did not need to be arranged (Director’s Decision [18.1] and [51]).

11.  According to the description of the applicant’s injuries set out in [18.1] of the Director’s Decision, the applicant’s injuries were quite serious:

“… You had a left hand’s palm surgery. The doctors put steel rod from the middle of your fingers and attached with the middle of the palm. Still, you are not able to open your hand. You had another surgery on your left arms’ elbow. Doctor put rod and wire on it to connect and support your arm. There was a big cut and the bone of your left arm was actually broken into 2 pieces. Doctor told you that all your veins were damaged. Only pulse view and blood view could be repaired. There was a big cut on your left leg. It was just hanging when it was injured. You had a cut on your left eye due to which your retina of your left eye got damaged. You are not able to see from your left eye. There was a long cut from your right hand wrist to arm. The portion from your right little finger to your wrist is not working. You had a laceration on your right knee cap.”

12.  In light of the undisputed physical injuries identified in the Director’s Decision, the Board’s conclusion that the applicant’s past ill-treatment did not meet the minimum level of severity appears to have been irrational, unreasonable and erroneous.

Ill-treatment by the police

13.  In [71] of the Board’s Decision, the Board found that the applicant’s evidence was not a credible witness in relation to the incidents of the police encounters.  The reasons given were that there was no evidence of the serious injury and that he had made no complaints when he was brought to court.

14.  In assessing the credibility of the applicant in relation to the torture by the police, the Board seems to have erroneously focused only on the physical injuries without examining the evidence of the applicant’s mental suffering and the effects those incidents of torture might have on him.

15.  It is well established that when assessing the veracity of a non-refoulement claimant, a decision maker is required to cconsider all relevant considerations[5], including taking into account every factor that might tell in favour of a claimant/an applicant.[6] In the present case, the applicant suffered severely mentally as a result of the various incidents of torture by the police while he was in jail. According to the Director’s Decision, the applicant’s mental condition deteriorated after the Second Incident-assault by the police. He was suffering from depression and needed to be admitted to a nursing home for treatment (Director’s Decision [6.30] to [6.33] and [6.41]). His mental condition was so bad that at the end of 2009, the applicant event attempted suicide after he had lodged a formal complaint to the Punjab State Human Rights Commission without any positive result (Director’s Decision [6.75] to [6.77]).

16.  According to a publication by the UNHCR[7] entitled “The Credibility Assessment- Factors to Take into Account”, one of the factors a decision-maker should take into account when conducting credibility assessment includes the impact of trauma on memory and behaviour. It states:

“Those who have suffered traumatic events often display avoidance symptoms; they avoid thinking and talking about the event. They may experience dissociation, the time of the traumatic event or when recalling it; they cannot remember some or all aspects of the trauma, because (aspects of) the event were not initially encoded. They many display emotional numbing and emotionally detach themselves from the facts they are relating. They may only remember sensory impressions (emotions, sensations, sounds, smells) or flashbacks; only fragments or impressions of the experience may be related. They tend to remember some central details, on which they have focused, at the expense of other peripheral details. Detention may have an impact on the ability to record and retrieve specific details of events. They may rely on general knowledge (schematic memory) about situations in preference to recalling specific painful events.”

17.  The Board faulted the applicant for not raising the complaints of the assault at the police station as well as when appearing at court without taking into account the impact of the trauma caused by the torture, which was very severe. It included the incessant harassment (Director’s Decision [6.30]; [6.79]); insertion of a plastic hose into the applicant’s anus (Board’s Decision [6.83]); applying electric shocks on his private parts, ear and tongue while his legs were tied with rope (Board’s Decision [6.86]) to [6.87]).

18.  By merely stating that the applicant’s evidence was full of “plausible, lack of details” in rejecting the credibility of the applicant’s account of the police torture, the Board would have appeared to have erroneously applied its subjective common sense by making an adverse finding as a result of the applicant’s failure to complain. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[8] (which was later followed in TI v Winston Leung[9] at [61]). A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened.

19.  Before the Board made an adverse credibility finding regarding the torture by the police, the Board was obliged by a high standard of fairness to give the applicant a reasonable opportunity to address any issues that might have resulted in its adverse credibility findings, so that the applicant could have an opportunity to address the case against him.[10]  From the Board’s Decision, I am unable to see that the Board had done so.

20.  In light of the lack of meaningful assessment of this portion of the applicant’s evidence, the lack of reasoning for rejecting his evidence and the fact that the Board has apparently applied its own common sense or assumptions, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.

Failure to give holistic considerations on the cumulative effects of the number of assaults and torture on the applicant

21.  In Canada (Minister of Citizenship and Immigration) v Munderer [11], the Canadian Federal Court of Appeal held that one incident assessed in isolation may not warrant protection, but the cumulative effect of various incidents may justify a need for protection. Therefore, in assessing the risk of harm, the decision maker must consider the totality of the evidence and cumulative risk of harm arising from all relevant factors.

22.  In the present case, the Board appeared to have a compartmentalized and isolated manner in its assessments of the 11 incidents starting from the 1^st incident (regarding the threat by Goldy, which caused the applicant to move his office to avoid Rejesh and Karnail (Board’s Decision [11])) to the 11^th incident (regarding the assaults by Rajesh, Karnail and other police officers from Sirhind Chowki Police Station (Board’s Decision [36])). The total of the 11 incidents ran through a period of more than 2 years from around end of 2007 until March 2010. During this period, the applicant suffered physical and mental injuries. The Board however appeared to have considered all the incidents in isolation by characterizing the assaults by Rajesh and Karnail as business disputes and police torture as lacking detail. By having failed to consider all the incidents individually and cumulatively, the Board’s weighing of the applicant’s evidence was incomplete and tainted. Particularly that the Board had not given weight to the cumulative effect of the incidents on the applicant’s mental condition. The Board appears to have wrongly overlooked the overall seriousness of the incidents throughout the several years before the applicant raised the non-refoulement claim in Hong Kong.

Failure to properly consider state protection

23.  After the attack on 26 May 2009, in which the applicant was seriously injured, the applicant wrote letters to authorities including Superintendent of Police in Fatehgard Sahib, Deputy Inspector General of Police in Patialia, the Director General of Police in Chandigarh and the Human Rights Commission. However, the applicant only received a reply from the Human Rights Commission, and he therefore feared that the police or other authorities in India would not be able to help him especially that Rajesh had close connection with politicians and there Karnail had power in the police force (Director’s Decision [6.120] to [6.122])

24.  In [81] of the Board’s Decision, whilst the Board had alluded to the fact that Karnail was the assistant sub-inspector in Mandi Gobindgard, it nonetheless found that his acts and all other police named in the claims were private and individual acts of their own, and had nothing to do with the State authorities in India.

25.  In the Director’s Decision at [20], the Director had referred to the COI that supported the applicant’s fear of the absence of state protection. The relevant COI showed that the police used “illegal detention and ill-treatment to punish criminals… Police are routinely diverted to protect “VIP”’ ([20(i)]) and they “fabricated charges or informed accusations...” ([20(ii)]).

26.  The Board did not seem to have considered any of the COIs referred to in the Director’s Decision before it concluded without any evidence that Rejesh and Karnail did not act in official capacity. In the circumstances, not only the Board has failed to demonstrate that it properly and independently assessed COI, it has completed failed to consider any at all. Thus, the Board’s Decision is tainted with procedural unfairness: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34].

Conclusion

27.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

28.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

29.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

30.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an 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