Case Document

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HCAL 1139/2024

[2026] HKCFI 5652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1139 OF 2024

BETWEEN

	William Masih alias William Chohan	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 16 July 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 4 July 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001139_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 1 March 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant named the Board / “Non-Refoulement Claims petition office” as the putative respondent in Form 86, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to India, his life would be in danger as he would be killed by Mr Jaswinder Singh (“JS”) and JS’s men, as JS wanted the applicant to convert from Christian to Sikh but he refused.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.In Form 86 and his supporting affidavit dated 16 July 2024, the applicant stated that he was not satisfied with the Board’s Decision.

11.In his handwritten letter annexed to his supporting affidavit, the applicant merely repeated the basis of his non-refoulement claim, namely that his life was in danger as JS wanted him to change his religion from Christianity to Sikhism.

Discussion

12.First of all, the applicant’s general comment that he was not satisfied with the Board’s Decision cannot help him. The applicant did not say why the Board’s Decision was wrong or how the Board had erred in its assessment of the applicant’s claim for non-refoulement protection.

13.The applicant’s alleged risk from JS had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

14.Thus, none of the matters raised in the applicant’s Form 86, his supporting affidavit and the letter annexed thereto constitutes any valid ground to challenge the Board’s Decision.

15.The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

17.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 May 2024. The applicant was present and was thus given the chance to present his case to the Board in person.

18.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

19.The Board had laid out its analysis of the applicant’s case in paragraphs 36 to 60 of the Board’s Decision. In gist, the Board found that in material aspects of his case, the information/evidence given by the applicant was conflicting and not believable. The Board had no doubt that the applicant was not an honest witness. The claimed risk was based on the information/evidence he asserted, but such information/evidence was not reliable. The Board therefore found that there was no credible information/evidence to support the applicant’s claimed risk. The Board was of the view that the applicant’s claim should be dismissed.

20.Nevertheless, in the assessment of the applicant’s risk of harm, the Board explicitly stated that even if the information/evidence given by the applicant was to be accepted, the Board would still dismiss his appeal/petition. The Board had given its reasons for such a conclusion in paragraphs 62 to 76, and it is not necessary to repeat the same here.

21.Simply put, the Board found that in both the first and second incidents described by the applicant, JS was not following him. The Board also found that evidence showed that JS did not have a strong interest to locate the applicant. More importantly, the Board found that even if JS still had the intention to locate him, the applicant could resort to internal relocation in India. The Board was of the view that it would not be unreasonable or unduly harsh for the applicant to relocate to areas in India other than his home village in order to earn a living and to avoid the claimed risk of harm.

22.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

23.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

24.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

25.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

26.For reasons aforesaid, the Leave Application is dismissed.

Dated the 7^th day of October 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 07/10/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 07/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 23167 Director of Immigration Putative interested party’s ref. no.: QA T/C 1412/23(T1S110) (Formerly RBCZ 5001400/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)