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

HCAL 1643/2021

[2026] HKCFI 2847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1643 of 2021

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. 

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 November 2021 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 29 April 2026.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.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 3 brothers due to a land dispute.

5.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001643_2021_files/the_Board's_Decision.pdf

The Director’s Decision

6.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”).

7.By way of Notice of Decision dated 28 February 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 30 September 2021, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board made the findings below. The Board had doubts on his evidence. See paragraph 51.

(1)  The Board found that his evidence incredible and unreliable. [50]

(2)  However, the Board at paragraph 52,

“is satisfied that the Appellant was harmed and/or threatened and such harm or threat was due to the allegation that the three brothers (or Surjit and Kuldeep) wanted to grab the land and finds against the Appellant as far as the credibility, reliability and plausibility of his non refoulement claims.”

This is quite ambiguous.

(3)  The Board further found that the applicant failed to establish that he would face any risk of ill-treatment by the 3 brothers if he is refouled to India. [53]

(4)  There is no evidence that his family was threatened. [54]

(5)  The applicant may return to India and live in some other places safely. [55]

(6)  The Board was not persuaded that the claimed risks still exist and that he would be harmed or killed by the 3 brothers is remote because the land is still registered in the applicant’s name. [57]

(7)  Therefore, the applicant failed to establish that he would face any risk of harm in the future if he is refouled to India. [59]

(8)  Internal relocation is viable. [79]

10.Although the Board’s findings may seem ambiguous, looking at the whole picture, the Board found that the applicant failed to prove his claim.

11.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

12.The applicant has filed Form 86 dated 3 December 2021 for leave to apply for judicial review of the Board’s Decision.

13.In support of his application, the applicant said he was not satisfied with the Board’s Decision. But he has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board was wrong because it did not accept his evidence.

16.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.”

17.I agree that part of the Board’s findings is ambiguous. However, the Board is clear in finding that the applicant will not face any real risk if he returns to India. The applicant has raised no valid ground to challenge the Board’s findings. Whether the Board accepted his evidence is within the Board’s province.

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

DISPOSITION

19.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 20^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