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HCAL 329/2021
[2026] HKCFI 536
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 329 OF 2021
BETWEEN
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Rajbir Masih |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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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:
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” and the name of the putative interested party be amended to “Director of Immigration”.
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 11 March 2021, 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 5 March 2021 (“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/2021/HCAL000329_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 July 2019 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, but spelt the name of the Board wrong. Also, the Director should be the putative interested party, not the Board.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would face an “honour killing” at the hands of the family of his former girlfriend, Baban Preet Kaur (“Baban”). Baban’s family disapproved of his relationship with Baban in 2016 as the applicant was from a lower social status and he was a Christian. Baban committed suicide in November or December 2018 when her family tried to arrange a marriage for her.
Oral hearing
7. The applicant requested for an oral hearing and his case was heard on 15 January 2026.
8. When this court asked the applicant for the grounds of his intended judicial review, the applicant said that he had threats to his life because the family of his girlfriend attacked him on different occasions. A love affair is a big problem in India and hence he could not return to India. He also said that his girlfriend had committed suicide and was murdered by her family. When this court asked the applicant to clarify whether his girlfriend had committed suicide or was murdered by her family, he said that according to his understanding, she was killed by her family but he heard that she had committed suicide. The applicant insisted that his girlfriend was killed by her family and her family wanted to kill him too.
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. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 11 March 2021. He merely asserted in his affirmation that he was not satisfied with the Board’s Decision and he could not go back to his country because his life was not safe in his own country.
11. What the applicant said at the oral hearing before this court was the basis of his non-refoulement claim, but it did not constitute any valid ground for his intended judicial review.
Discussion
12. 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).
13. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the applicant’s appeal, the Board held two oral hearings on 28 May 2020 and 4 June 2020 respectively. Thus, the applicant was given the chance to present his case to the Board in person.
15. After due consideration of the evidence, the Board found the applicant’s story not credible. The Board found as a fact that the applicant was not in a relationship in India with a girl named Baban Kaur.
16. The Board also gave the applicant extra time to come up with evidence relating to the position of Baban’s father but he was unable to do so. The Board’s own research found that the mayoralty of the area was not decided in a free election but was reserved to Scheduled Caste, ie not someone in a powerful position, as stated in the applicant’s evidence.
17. The Board found no evidence, even in the applicant’s statements, to suggest that the applicant had been subjected to serious harm. The actor of potential harm was not a state actor.
18. Further, the Board found the applicant’s claim that the authorities were unable or unwilling to protect him was untested and fanciful. The Board found that it would be safe for the applicant to move to a different part of India to avoid harm, if any. The Board also found that the applicant, being a fit, young man with a history of working, could relocate with no obstacles to another part of India.
19. The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.
20. The assessment of evidence, country of origin information and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 4thday of February 2026
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( Irene LEE ) |
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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 the applicant’s solicitors must: |
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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)). |
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Sent/Handed to the applicant/the applicant’s solicitors
on: 4 February 2026
Applicant’s ref. no:
Nil |
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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: 4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16094/19/7/60/IN3109
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 468/19 (T1S106)
(formerly RBCZ 10331/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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