GUPTA RAJESH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 149/2026

[2026] HKCFI 2708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 149 of 2026

Application for Leave to Apply for Judicial Review

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

Following:

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 13 January 2026 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 December 2025 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 28 October 2025 refusing his application for non-refoulement protection.

Background

2.  The Applicant is an Indian national, now aged 29.  He arrived in Hong Kong on 27 November 2023 and overstayed since 12 December 2023.  He surrendered to the Immigration Department on 20 August 2025 and raised a non-refoulement claim by written signification.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed, if returned to India, by his next-door neighbour because of a land dispute.

4.  The Applicant is married and has a son.  They all live on his father’s land. He also worked as a farmer on his father’s land.  During his childhood, he learned from his father that their next-door neighbour had asserted that the Applicant’s grandfather had given the land to him.  The neighbour could provide no proof, but kept asking his father to transfer ownership of the land to him. 

5.  On the morning of 18 March 2023, the neighbour and the Applicant had a quarrel over the land which ended with the neighbour hitting the Applicant with a baton on the head.  The Applicant fell unconscious.  He received 15 stitches on his head and was hospitalised for three days.  After his discharge from the hospital he moved to live with his friend in Delhi.  His father reported the assault to the police but no action was taken by the police.  Then on 27 November 2023, the Applicant departed India and arrived in Hong Kong.  While in Hong Kong, his wife informed him that the neighbour had threatened to kill him.  He also learned from his father that the neighbour had come to his family home, verbally abused his family members and repeated the death threat.  The Applicant did not report his neighbour’s conduct and threat because he believed the police would not protect him.  He did not consider internal relocation feasible as he believed his neighbour had resources to locate him.

The finding of the Board

6.  The Board considered the Applicant’s evidence of harm from his neighbour lacked internal coherence.  Despite having remained safe outside his home area for eight months, he left India.  By the time of the hearing before the Board, the Applicant had left India for 30 months.  During that period of time, his neighbour did not harm or threaten his family members or take any steps to assume ownership of the land.  The Board considered it unbelievable that his neighbour had continued to threaten him as alleged.   The fact that he did not seek protection promptly on his arrival in Hong Kong but waited until 20 months later is a negative factor which weighed heavily against his credibility.  It found his evidence on material aspects of his case insufficient, conflicting and not believable.  It did not consider him an honest witness and did not accept his claimed risk of harm from his neighbour. Hence, it dismissed his appeal.

7.  The Board also went further and assessed the Applicant’s claim on the basis of the case as he asserted.  It made some further necessary finding of facts.  It found there was no reliable evidence that his neighbour would harm or kill him if he were to return to India, that he would face risk throughout India and that the state of India was unwilling to help him for a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention reason”).  It found his dispute with his neighbour a private land dispute and the risk of harm would not be on account of a Convention reason.  It found the injuries he suffered did not attain the minimum level of severity and fell outside the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.  Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

8.  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[6].

Grounds for judicial review

9.  The Applicant did not advance any grounds for judicial review in his Form 86.  After the legal principles had been explained to him, he confirmed that he had no complaints about errors of law, procedural unfairness or irrationality.  However, in his supporting affirmation, he had made the following points:

(a)   the Applicant is a genuine non-refoulement clamant facing dangerous problems, harassment and torture in his home country:

(b)   that the Director reached the wrong decision in rejecting his claim without making proper inquiry and he invited the Director to send his immigration officers to tour India to study the situation there;

(c)   that if he did not flee India, he would have been killed;

(d)   for the above reasons, leave to apply for judicial review should be given; and

(e)   he asks for leave to be granted. 

10.  Point (a) asserts that the Applicant is a genuine asylum seeker entitled to non-refoulement protection.  As the Board found he is not entitled to protection, this is a direct challenge of the Board’s finding of fact which is not permissible.

11.  Point (b) is directed at the decision in the Director’s Notice, which had been superseded by the Board’s Decision and is therefore irrelevant. Even assuming that this point is directed at the Board, it discloses no particulars of the Board’s errors.  The Applicant’s suggestion that the Director sends immigration officers to the Applicant’s home country to make investigations is clearly impracticable.  The officers also have no authority to carry out investigations in India.  Furthermore, it could not have been the intention of any court laying down the high standard of fairness that such standard requires the decision maker to make an in situ investigation whether of the claimant’s claim or the general human rights situation in the risk state.  In this Court’s opinion, the high standard of fairness is met by the decision maker making adequate researches into available and credible country of origin information (“COI”).  This Court is also satisfied that this standard has been discharged in this case.  The Board had considered COI from authoritative and credible sources when considering availability of state protection and internal relocation.

12.  Point (c) is a direct challenge of the Board’s finding of fact which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision.

13.  Points (d) and (e) are the relief sought.  They are not supported by particulars.

14.  All these points are lacking in particulars.  None of them could be valid grounds of application.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

15.  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.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It found the Applicant’s case inherently incoherent and improbable.  It considered the Applicant incredible and his evidence unbelievable.  It found he had failed to proof the factual basis in support of his claim for non-refoulement protection under any of the applicable grounds under the USM.  This is the primary basis of its decision.

16.  The Board also assessed the Applicant’s claim on the basis of the case as he asserted after making some necessary finding of facts.  Applying the law applicable to non-refoulement protection to those facts, it found the Applicant is also not entitled to protection under any of the applicable grounds under the USM.  This is the secondary basis of the Board’s Decision. 

17.  The Board’s primary and secondary findings are mixed finding of the law and of the facts.  It gave reasons for its finding.  Insofar as its finding are finding of the law, it is absolutely correct.  Insofar as its findings are finding of the law, they are absolutely correct.  Insofar as its findings 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 irrationality in the Decision.  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 had 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

18.  For these reasons, the Applicant’s leave application is refused.

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

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