VISHAL MASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 355/2026, [2026] HKCA 1135

On Appeal From [2026] HKCFI 1817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 355 OF 2026

(ON APPEAL FROM HCAL NO. 2668 OF 2024)

_________________

________________

_________________

J U D G M E N T

_________________

Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 30 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 4 December 2024 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed his appeal against the decision dated 30 September 2024 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2 risk[5] grounds.

Background

2.  The applicant is a national of India born in 1994.  He and his family are Christians.  He travelled to Hong Kong by air on 10 August 2024.  He was refused permission to land in Hong Kong and lodged his non‑refoulement claim by way of written signification on the same day.  His claim was made on the basis that if he were to return to India, he would be harmed or killed by a Sikh named Sarabjeet Singh (“SS”) who was envious of the applicant’s success in establishing a strong following in Christianity, and had influenced the local Sikhs and Hindus in their home village to convert to Christianity.  The applicant claimed to be subjected to various attacks and threats from SS and his associates from 2020 to 2024.  He decided to leave India as SS has risen to power after winning the 2023 election of the Legislative Assembly as a candidate from the Aam Aadmi Party in Punjab.  

3.  Details of the applicant’s background, the basis of his claim, the arguments advanced before the Board and the Board’s reasons for rejecting his appeal have been set out in the Board’s decision.[6] Essentially, the Board rejected the factual claims of the applicant on credibility grounds, and found that even accepting his claims were true, he had not met the requirements entitling him to protection under any of the applicable grounds.

4.  By a Form 86 filed on 31 December 2024, the applicant applied for leave to judicially review the Board’s decision.  The Judge has set out the applicant’s grounds for seeking relief and his reasons for refusing the application in [10] to [18] of the Form CALL-1 dated 30 March 2026.  We will not repeat them. 

Appeal to this Court

5.  On 8 April 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that (1) he disagreed with the court’s decision as it did not scrutinize his claim properly, (2) his claim was rejected even though there was severe problem in his home country, and (3) he would be killed by his enemies upon his return.

6.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We therefore determine the appeal on the basis of the available documents and materials.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  In the present case, the Board rejected the core facts of the applicant’s case as it found his evidence and oral testimony to be vague, evasive and inconsistent with his written claims.  Further, there was no supporting evidence to prove the alleged injuries or any intention from his enemies to cause him harm.  His claim was further undermined by his own behaviour as he chose to remain in his home village for months despite death threats from his enemies.  The Board found that even accepting the applicant’s account of past threats and assaults, the dispute was a private, localised conflict without any involvement of the state officials.  On the basis of the COI as referred to in the Director’s decision, the Board found that the applicant could resort to the appropriate protection if there was a genuine need for him to do so if he were to return to India.  The Board further assessed that the applicant, being a young, educated and experienced worker, could reasonably relocate to another part of India to avoid the localised threat from SS.  The Board thus concluded that the applicant failed to satisfy the requisite entitlement to protection under any of the applicable grounds.

10.  In his application for leave to apply for judicial review, the applicant had put forward a list of grounds for review but did not point to any specific error in the Board’s findings or provide any particulars to support his assertions that the Board’s Decision was unreasonable and unfair.  The Judge had addressed the grounds in turn and gave detailed reasons for dismissing his application.  On the issue of state protection, although the Judge stated that the Board did not refer to COI about police station,[7] we note that the Board had considered the COI referred to in items 1 to 19 of the Director’s decision concerning state protection, and concluded that the applicant could resort to the appropriate protection if there was a genuine need for him to do so upon his return to India.[8]  Thus, the applicant’s complaint before the Judge that the Board failed to give weight to the COI could not stand in light of the Board’s assessment on the risk of harm on the basis of the available COI. 

11.  We also note that in the application below, the applicant had challenged the Director’s decision in that it failed to give proper weight to the presence of state acquiescence.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision.  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

12.  In this appeal, the complaints that the Board rejected his claim despite severe problems in his home country are no more than vague and general assertions without engaging with the reasons of the Board in rejecting his evidence and claims.  The Board was entitled to come to its conclusion on the assessment of risk based on the evidence it received and for the reasons it gave.  The applicant had failed to show any reasonably arguable public law error in relation to the Board’s decision, as observed by the Judge. 

13.  Further, his complaints in the Notice of Appeal that the court did not scrutinise his claim properly are misplaced as it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh.  The applicant had not demonstrated with particulars any error in the decision and reasoning of the Judge, or advanced any viable ground of appeal against the Judge’s decision.  There is no proper basis for us to disturb the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.

[1]    [2026] HKCFI 1817

[2]    This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]    This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]    This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]    This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7]    [15] of the Form CALL-1

[8]    [42] of the Board’s decision