RAKESH MASIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 510/2022

[2026] HKCFI 2992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 510 OF 2022

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:

1.  The Applicant is a 42-year-old national of India who entered Hong Kong illegally in April 2020 and was arrested by police some 8 months later on 8 December 2020. After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local Hindu extremists due to his Christian religion.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in a Christian family in Village Char Pur, District Amritsar, Punjab, India where he used to attend regularly church services and activities with his family, and after leaving school he assisted in his family’s grocery store in his home district.

3.  However, in about 2014 some Hindu extremists groups such as Shiv Sena (“SS”) and Bajrang Dal (“BD”) started to intensify their anti-Christians and Muslims activities across the nation, and one day in April 2016 while on a trip with his fellow Christians and their church pastor to Amritsar City to attend a prayer meeting at the residence of a Christian family, they were confronted and attacked by some Hindu extremists with wooden sticks that the Applicant suffered injuries to his head that he together with some other injured fellow Christians were subsequently taken to a local hospital for medical treatments before the Applicant returned home.

4.  Several months later one day while he was on his way to his family’s grocery store, the Applicant was attacked by another group of Hindu extremists that he was knocked unconscious and was again taken to the hospital for medical treatments.    

5.  As the threats and harassments from the Hindu extremists had persisted, the Applicant felt it was no longer safe to remain in India, and so on or about 17 December 2018 he departed the country for China, and from there he later in April 2020 sneaked into Hong Kong, and upon his subsequent arrest by the police some 8 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 4 October 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by any Hindu extremists upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any Hindu extremists groups to seriously harm or kill him or any reason for them to specifically target him for harm, that his family who were all Christians have remained unharmed in his home village without any incidents all the years since he left the country, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to as reliable and objective Country of Origin Information (“COI”) show that freedom of religions are protected by law to all its citizens in India, and that reasonable internal relocation alternatives are also available in India with a large population of 1.3 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for any Hindu extremists groups to locate him.

8.  On 15 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 9 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any Hindu Extremists due to his Christian faith that caused him to leave his country to come to Hong Kong to seek protection when everybody in his family who were also Christians have all resided safely in his home district without any incidents all the years since he left the country, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 8 months later and only after his arrest by the police, that in any event there was no reliable evidence or any reason for any of Hindu extremists groups to specifically target him for harm and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as evidenced by relevant COI that religious freedom is protected by laws and constitutions in India, while reasonable internal relocation alternatives are also available for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non‑refoulement protection failed on all applicable grounds.    

10.  On 21 June 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper grounds for his intended challenge, nor was he able to do so at the hearing of his application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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