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

HCAL 2910/2025

[2026] HKCFI 2701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2910 of 2025

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 December 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant appeared before the Court on 4 May 2026.

The applicant

3.The applicant is a national of India. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the father and brother of his girlfriend, Amandeep (“his enemies”) because of their romantic relationship.

4.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002910_2025_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of Notice of Decision dated 27 October 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 11 December 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)  The applicant’s problem has no political element, but a private family matter and the state was not involved. [35]-[36]

(2)  There was no evidence that:

i.  his enemies would harm or kill him if he were refouled to India;

ii.  he faces risk across India;

iii.  he had suffered injuries to the required severity under BOR 3 risk; and

iv.  the state of India will be unwilling to give protection to him. [44]

(3)  Internal relocation is viable. [91]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 31 December 2025 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant has raised the reasons below.

(1)  There was error in law in the assessment of the evidence; the standard being too high for his proof of harm; improperly assessed his credibility, in breach of procedural fairness without sufficient consideration of the country of origin information.

(2)  The Board’s consideration of internal relocation was without proper analysis of the practicability.

(3)  The Board did not give adequate explanation for rejecting his evidence.

(4)  The Board failed to recognize that threats from non-state can amount to persecution if state protection is unavailable or ineffective.

(5)  Overall, the Board’s Decision is unfair.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, when asked if he considered the Board was wrong in its decisions, the applicant said that the Board had taken a different view.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The reasons under paragraph 11 are bare assertions or his general comments or opinions without any evidence in support. They are not valid to challenge the Board’s Decision[1]. As the applicant submitted before the Court, the Board had taken a different view, and the Board was entitled to do so.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 13^th day of May 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