LIMBU DIPIKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1341/2024

[2026] HKCFI 4796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1341 OF 2024

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 / the Applicant being absent in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who arrived in Hong Kong on 16 March 2023 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but on 18 July 2023 she was arrested by police for undertaking unauthorized employment and for which she was subsequently convicted and sentenced to prison for 2 months. After her discharge from prison, she was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her creditor for failing to repay her debts.

2.  The Applicant was born and raised in Matigara, West Bengal, India. After leaving school she worked in various odd jobs in her home district to make her living.

3.  In 2021 in order to pay for her brother’s medical expenses the Applicant borrowed a loan from some local money-lender to be repaid by monthly instalments with interests which she intended to make by applying to come to Hong Kong to work as a foreign domestic helper and to remit money to her creditor in India, which she did when she arrived in Hong Kong in March 2023 to start her employment.

4.  However, after her arrest by the police in July 2023 for undertaking unauthorized employment and was subsequently sent to prison and hence was unable to make any loan repayment that her creditor then made threatening calls to kill her when she returned to India, and so the Applicant raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 September 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 3 November 2023 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to India as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her 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”) shows 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 adult with working experience to move to other areas of the country away from her home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for her creditor to locate her.

7.  On 13 November 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 17 January 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from some creditor over any debts that caused her to overstay in Hong Kong to seek protection, that even if her claim of threats from her creditor over her debts were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement and that state or police protection would be available to the Applicant upon her return to India if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 14 August 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a National state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event if the TCAB and the Decision which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant country of origin conditions to consider that the Applicant would face serious risk from her enemies who will harm her because of her political and statistical view which is considered a serious matter for which she would be harmed upon her refoulement;

(3)  Procedural impropriety/irrationality in failing to give reasons for the assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk in the Applicant’s claim;

(4)  Error/misdirection in law in failing to consider the psychological strain and threats to the Applicant personally of threats to kill her by her enemies;

(5)  Procedural impropriety in failing to consider the Applicant’s fear of her enemies that she could not return to her home country due to genuine risk waiting for her that she could not relocate to other places as her enemies could easily trace her wherever she hides in her country;

(6)  Errors/misdirection in law in failing to assess the Applicant’s fear of facing a terrible risk upon her refoulement to her home country;

(7)  That there is no sufficient basis for the Board to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

10.  These are however all just bare and bald 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 her 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 consider her claim properly or to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were her political and statistical views to her case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. 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 her intended challenge.

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 her 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 her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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 her to relocate to other parts of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.  Moreover, the Applicant has recently on 17 July 2026 requested in writing to withdraw her application as her problems in her home country have been resolved that she now wants to return to India.

16.  In the premises, 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, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave 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