RAJNEET KAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 983/2020

[2025] HKCFI 2935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 983 of 2020

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 oral submissions by the Applicant in open court;

1.   The Form 86 be amended on the court’s own motion.

2.   The applicant’s application for leave to issue the judicial review application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 January 2020 (“Board’s Decision”), dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 20 February 2017 (“Director’s Decision”) on rejecting the applicant's non-refoulement claim on BOR 2 risk^[1] ground. 

2.  To facilitate discussion, I should also mention that there was a prior decision of the Director dated 18 November 2015 (“Director’s Prior Decision”) in which the Director considered the applicant’s claim under all the applicable grounds of risk of torture^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM^[5] with the exception of BOR 2 risk ground.  The applicant’s appeal to the Director’s Prior Decision was dismissed by the Board’s prior decision dated 15 August 2016 (“Board’s Prior Decision”), in respect of which decision the applicant had not sought any relief in her Form 86. 

3.  In the applicant’s Form 86, the applicant named the Board as the interested party.  As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  The Board’s Decision and the Board’s Prior Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000983_2020_files/the_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000983_2020_files/the_Board's_Decision_Corrigendum.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000983_2020_files/Earlier_Board's_Decision.pdf

5.  The basis of the applicant’s claim was that she would be harmed or killed by her ex-husband as well as her fear of being forced by her parents to remarry.  The Board’s reasoning and findings were set out in detail in the Board’s Prior Decision and the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Prior Decision and the Board’s Decision.

6.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 27 June 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

7.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  In her supporting affirmation for her Form 86, the applicant stated that she could not return to her country because her life would not be safe there.

10.  Since the applicant had not sought any relief in relation to the Board’s Prior Decision in her Form 86, this court tried to clarify the applicant’s position at the hearing.  Despite the court’s explanation to the applicant about the Director’s Prior Decision and the Board’s Prior Decision, the applicant was not able to state affirmatively whether she also wished to seek relief in respect of the Board’s Prior Decision.  The applicant informed the court that in 2018 she got married to a fellow non-refoulement claimant in Hong Kong, and gave birth to a daughter in June 2019.  She stated that her husband had also filed an application to apply for judicial review against the Board’s dismissal to the High Court but failed.  She stated that she had filed a judicial review application on behalf her daughter in October 2020, which was still pending.  She also told me that she believed she had filed a judicial review application in 2018 in relation to the Board’s Prior Decision.

11.  Since the applicant did not seek to challenge the Board’s Prior Decision in the Leave Application despite the detailed explanation from the court, I do not think this court should amend the Form 86 on the court’s own motion by adding the Board’s Prior Decision in the Leave Application.  Hence, the Board’s Prior Decision is not the subject matter of the Leave Application.

12.  After having ascertained the applicant’s position in relation to the Board’s Prior Decision, this court then asked the applicant if she had anything to say regarding her intended challenge to the Board’s Decision.  The applicant stated that her present situation did not allow her to go back home as she asked to be allowed to stay in Hong Kong.

13.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[8]

14.  The same constituted Board of the Board’s Prior Decision decided to dispose of the applicant’s appeal against the Director’s Decision on paper without a hearing. After having extensively referred to the relevant decided cases and the principle of non-refoulement protection concerning the nature and scope of BOR 2, and the findings of fact in the Board’s Prior Decision, the Board found that there was nothing in the evidence to show that the applicant would be at risk of BOR harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

15.  Although there are also two decisions of the Board in the present case, I consider that the facts are distinguished from the Court of Appeal decision of Re Kamaljeet Singh [2023] HKCA 1195, in which the Court considered not only the appellant’s challenge to an earlier decision of the Board, but also the later decision that the appellant had not expressly challenged. As stated above, despite an opportunity given to the applicant to challenge the Board’s Prior Decision, the applicant chose not to do so in the Leave Application. Based on what the applicant had told this court, I believe that a challenge might have already been brought against the Board’s Prior Decision. In the circumstances, different to Re Kamaljeet Singh (supra.), I do not consider that the Leave Application is capable of being read as referred to both of the Board’s Decisions in the present case.

16.  As the Court of Appeal in Re Kamaljeet Singh (supra.) stated, the issue of BOR 2 risk was different from the questions of BOR 3 risk, torture and persecution risk. The Court is in that case held that the Board was not precluded by res judicata and should have independently assessed the relevant risk. 

17.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to the ground of BOR 2 risk and observed a high standard of fairness by conducting an independent assessment of the risk relevant to BOR 2 risk. It had taken into account the facts that the Board had previously found in the Board’s Prior Decision, correctly identified, and applied the law. The applicant’s written grounds are vague and general. Neither has the applicant provided any grounds at the hearing.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[9].

18.  For completeness, it should be mentioned that the Form 86  was filed was within the time limit due to the General Adjournment of Proceedings from 29 January 2020 to 3 May 2020[10].

Order

19.  The Form 86 be amended on the court’s own motion.

20.  The applicant’s application for leave to issue the judicial review application be dismissed.

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