Case Detail

HCAL 1955/2024

[2025] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1955 OF 2024

_____________

BETWEEN

	JOBAN MASIH	Applicant
and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_____________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	15 May 2025
Date of Decision:	3 June 2025

_____________

D E C I S I O N

_____________

1. On 9 January 2025 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2. The Applicant now by a summons issued on 17 March 2025 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 23 January 2025, and hence he was more than 7 weeks late with his intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the Applicant’s case, a delay of more than 7 weeks must be considered as substantial and inordinate, for which he stated in his supporting affirmation as follows:

“The decision made by Deputy High Court Judge Bruno Chan was reached unfairly, as I was not given an opportunity to clarify my case and situation in my country. It is insufficient to consider that I was a litigant in person, illiterate, unrepresented, uneducated, and unfamiliar with court rules, especially as I am new to Hong Kong and unaware of the time limits.
Moreover, I did not receive any correspondence from the Court regarding my hearing date or the dismissal of my Judicial Review, and I disagree with the court’s decision. I wish to inform you that I fear for my life if I am forced to return to my country. I humbly request that the court allow my appeal out of time and grant me the opportunity to explain my situation.”

5. The court record shows that the decision was sent on the same day of 9 January 2025 to the Applicant’s last reported address without being returned through undelivered post, and if the Applicant never did receive the decision in the mail as alleged, then he failed to explain as to how he found out about the decision which he now intends to appeal, as he also failed to attend the hearing of his summons without any explanation, and in the absence of any reliable evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

6. More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which as noted above that he just made bare assertions that the decision was not fair as he was not given any opportunity to clarify his case or the situation in his country when in fact that he failed to attend the scheduled hearing of his leave application without any explanation, nor did he as noted above attend the hearing of his present application again without any explanation. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

	(Bruno Chan)
	Deputy High Court Judge

The Applicant was unrepresented and did not appear

HCAL 1955/2024

[2025] HKCFI 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1955 OF 2024

BETWEEN
	Joban Masih	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 (Ord 53 r 3)

Following:

consideration of the documents only; or
consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1. The Applicant is a 22-year-old national of India who arrived in Hong Kong on 1 July 2024 as a visitor, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor over his unpaid debts.

2. The Applicant was born and raised in Village Ali Nangal, Tehsil Dera Baba Nanak, Gurdaspur, Punjab, India. After leaving secondary school he was sent by his family to Singapore to study for a diploma in tourism with the help of a loan borrowed from a local money-lender with monthly interest payments in the hope that upon returning from Singapore the Applicant would be able to find a job to repay the loan.

3. However, when the Applicant later could only work as a farmer earning little that he was unable to repay his loan, and so in June 2023 his creditor started to send men to threaten him, and after one occasion in August 2023 when he was ambushed by those men who tried to attack him with wooden sticks but the Applicant managed to flee from the scene unharmed and thereafter to take shelter in his grandparents’ home in Pashyia, and on 21 June 2024 he departed India for Thailand and Macau before arriving in Hong Kong on 1 July 2024, and when he was refused entry by the immigration department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 July 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4. By a Notice of Decision dated 13 August 2024 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”).

5. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.4 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his creditor to locate him.

6. On 19 August 2024 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 3 October 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 October 2024, his appeal was dismissed by the Board which also confirmed the Director’s decision.

7. In its decision 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 his creditor that caused him to leave his country to come to Hong Kong to seek protection, that even if his claim were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

8. On 30 October 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;
(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;
(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;
(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;
(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;
(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;
(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

9. These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private monetary dispute between him and his creditor only without any official involvement or political element at all, nor did he subsequently attend the scheduled hearing of his application without any explanation. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

10. 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.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.

12. 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.

13. For all these reasons I am 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.

Dated the 9^th day of January 2025

(Chung Lai Fan, Christine)
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:
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 to the Applicant on 9 January 2025 Joban Masih Applicant’s ref. no.: Nil.		Sent 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 9 January 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 24433 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1854/24 (Formerly RBCZ 5001455/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

JOBAN MASIH v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

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	consideration of the documents only; or
	consideration of the documents and the Applicant being absent in open court;