Vishal Masih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2668/2024

[2026] HKCFI 1817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2668 of 2024

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 31 December 2024 for 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 30 September 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing his claim for non-refoulement protection. 

The background

2.The Applicant is an Indian national, aged 31.  He last arrived in Hong Kong on 10 August 2024 and was refused entry.  Then he lodged a non-refoulement claim by written signification.  His claim was assessed on all applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director in his Notice. His appeal against the Director’s Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of the Board’s Decision.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.   In gist, he claims he will be harmed or killed by Sarabjeet Singh (“Sarabjeet”) for being a Christian and for a false charge made against him.

3.The Applicant’s case is that he and his family are Christians. In his village, most of the villagers are Sikhs and Hindus, with only around 200 Christians.  He was very active in the church.  Some of his Sikh and Hindu friends were impressed by his success and started attending church with him.  That drew the attention of Sarabjeet.  He was ambushed and assaulted by Sarabjeet’s associates in October/ November 2020 and threatened with death.  He was rescued by people from the church.  His leg was injured during the incident but recovered in 15 to 20 days.  He wanted to report the assault to the police. But, on the advice of his uncle and some fellow Christians, he sought reconciliation through the village sarpanch.  The Applicant and the three associates reached a written compromise before the sarpanch.  The associates apologized, but Sarabjeet refused.  The Applicant was told by Sarabjeet’s cousin that Sarabjeet had made false allegations against him to the police.  In late March 2021, he left the village to live with his in-laws.

4.The Applicant and his family moved back to his village towards the end of 2022.  In mid 2023, Sarabjeet demanded the Applicant to encourage the Christians to support him in the Legislative Assembly election.  But, the Applicant flatly refused.  In March/April 2024, he was struck from behind by a car while riding his motorcycle outside his home.  He suspected it was Sarabjeet who struck him.  He did not consider he could relocate to other areas in India to avoid Sarabjeet because of language problems. Out of fear, he fled to Hong Kong on 9 August 2024.

The finding of the Board

5.The Applicant testified before the Board.  The Board considered his evidence vague and found him evasive.  It found significant contradictions between his written evidence and his testimony before the Board and that some of his allegations were suspicious.  It considered the number and nature of the inconsistencies and suspicious allegations were sufficiently serious as to undermine the reliability of the Applicant’s evidence.  The Board was not convinced that he was a reliable witness or that his account was believable. It found he was not telling the truth.

6.Despite his allegation that false charges had been made against him, the Applicant confirmed that no criminal charges were laid against him. The Board found the injuries he suffered during the two incidents were not serious and his family was never hurt or harmed at all.  Hence, it found Sarabjeet had no intention to kill him.  It found the clashes and violence described by the Applicant were very much localized.  It considered Sarabjeet and his associates were at most local leaders of the AAP in the Applicant’s home area.  It rejected the Applicant’s claim that Sarabjeet was so powerful as could locate him anywhere in India.  It found the dispute between the Applicant and Sarabjeet was a private dispute in which the state was not involved.  Despite he was allegedly threatened with death in October/ November 2020, he continued to stay at his home village for four months up to March 2021.  He even returned to his home village at the end of 2022.  The Board found his conduct inconsistent with that of a person in genuine fear of risk of harm.

7.On the basis of the above findings, the Board assessed the level of risk of harm upon the Applicant’s return to his home country to be low and the risk of harm was not real.  However, because of the seriousness of the consequence if the risk turned real, it proceeded to assess the Applicant’s claim on the basis that the claimed threats and assaults from Sarabjeet and his associates were real.  It made similar findings as above and the following further findings of fact.  It found the ill-treatment inflicted upon the Applicant did not attain a minimum level of severity; that there was no evidence that the state or any public official or person acting in an official capacity would be involved in inflicting or instigating such harm on the Applicant or acquiescing in such harm being done on him.  It found the ill-treatment would not fall within the definition of ‘torture’ under 37U(1) of the Immigration Ordinance.   It found it was the Applicant’s own volition not to seek help from the police or the authorities and not that he had been refused assistance by the authorities.  It did not accept that the Applicant would not be accorded appropriate protection if he should ask for help on his return to India.  As the Applicant had failed to prove that state protection was not available, the Board did not find it necessary to consider the question of internal relocation.

8.Applying the law applicable to non-refoulement protection, the Board was not satisfied that the Applicant was entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

9.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 [2].

Grounds for judicial review

10.The Applicant annexed a one-page document containing nine paragraphs, titled ‘Grounds on which Relief is Sought’.  It contained some general legal principle and prayer for relief.  His complaint maybe summarized as follows:

(1)   The Decision was unreasonable and unfair; 

(2)   The Director failed to give proper weight to the presence of state acquiescence; and

(3)   The Board acted unfairly by placing too much weight on country of origin information (“COI”) without having regard to the Applicant’s personal background and experience and did not give enough weight to COI which supported his claim.

Some of these grounds are directed at the Director and some at the Board.  For the benefit of the Applicant, it is assumed that all the grounds are directed at both the Board and the Director. 

11.Ground (1) is a general assertion of unfairness and unreasonableness. It is wholly lacking in particulars.  The Court explored this ground with him while explaining the principles applicable to judicial review to him.  His submission was that he had given all the information to the Board, but the Board did not understand him.  He said he was a church leader and in that position he had a lot of problems with Sarabjeet who was associated with the AAP.  He was not allowed to celebrate Christmas.  His grandmother and uncle were assaulted and threatened, but the police took no action. 

12.In substance and in essence, he was challenging the Board’s finding of fact, which is not permissible save for errors of law, procedural unfairness and irrationality in the Decision.  Furthermore, his assertions were all false.  From the Board’s summary of his case in page 7 to page 12 of the Decision, it is obvious that the Board knew and understood his case.  In paragraph 36 of its Decision, the Board accepted his personal and family background and that he might be a devout Christian, though it did not accept his other claims.  It seeming accepted his evidence about the two attacks but not that Sarabjeet had intention to serious harm or kill him or that he had suffered injuries which attained a minimum level of severity or he had genuine fear of harm from Sarabjeet.   These are finding of facts solely for the Board and the Board did give reasons for its findings. 

13.It was also not his case before the Board that the police took no action to protect him.  His evidence was that he accepted his uncle’s and his fellow Christian’s advice not to report the assault to the police, but to seek reconciliation with the help of the sarpanch.  As the Board found, it was his volition not to seek help from the authorities.  There was nothing in the evidence that suggested that he had sought help from the police and the police refused to help him.

14.Grounds (2) is a direct challenge of the Board’s finding of fact that there was no evidence that the state or any public official or person acting in an official capacity was or would be involved in inflicting or instigating such harm on the Applicant or acquiescing in such harm being done on him.  That is not permissible save for errors of law, procedural unfairness or irrationality in the Decision.  No such vitiating elements had been advanced by the Applicant.

15.Ground (3) is about COI information.  The Board had not referred to any COI, except for the population and geographical size of India, which are not controvertible.  Despite having done that, it held as the Applicant had not discharged the burden of proving that state protection was not available, the issue of internal relocation did not arise: see paragraph 7 above.  It did not refer to COI about police protection.  If it was the claimant’s claim that state protection was not available, it would be his burden to raise the issue and discharge his burden of proof.  If he did raise the issue, it would invoke the Board’s duty of joint endeavor to investigate into availability of state protection by researching into the COI.  But the Applicant never did. His evidence was, as the Board noted, that he decided not to seek help from the police but to seek reconciliation through the Sarabjeet with Sarabjeet’s three associates on the advice of his uncle and his fellow Christians.  He had raised not even the slightest suggestion that the police refused or would be unable to assist him. 

16.There is no substance in any of these grounds of application.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

18.The Board tested the Applicant’s evidence against common sense and inherent probability.  It found numerous significant inconsistencies and suspicious assertions in his evidence which go to the centerpiece of his claim.  Those findings led the Board to the conclusion that the Applicant was not a witness of truth.  It rejected most of his evidence and made certain finding of facts as summarized above.  It gave detailed reasons for its findings.  On the state of the evidence, it was open to the Board to make those findings.  Applying the law applicable to non-refoulement protection, it found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the applicable grounds under the USM.  Those are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.For the above reasons, the Applicant’s leave application is refused.

Dated the 30^th day of March 2026

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