SHERPA SIPARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3360/2019

[2026] HKCFI 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3360 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 November 2019 for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 7 November 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 August 2019 (the “Notice”), refusing her application for non-refoulement protection.

The Applicant’s case

2.  The Applicant is an Indian national, aged 35. Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, she claims that if returned to India, she will be harmed or persecuted by her ex-boyfriend.

3.  The Applicant is an ethnic Nepalese and a supporter of the Gorkhaland Forum which fought for rights of Nepalese in India. In 2012, she came to know her ex-boyfriend who is a gangster associated with the Bharatiya Janata Party (the “BJP”) which opposed the Gorkhaland movement. Soon, they developed a romantic relationship. However, towards the end of 2015, she broke up with him against his wish. Since then, her ex-boyfriend by himself and through his gang fellows assaulted or harassed her from time to time. She was last ambushed and attacked by him in December 2016. She suffered minor injuries. She went to Sikkim to hide in the home of her elder brother’s friend for about two and half months. Then she returned to her home and waited until 13 June 2017 when she came to Hong Kong to work as a foreign domestic helper.

4.  In September 2018, her employment contract was prematurely terminated. She went to Macau where she stayed for two months during which time she worked as a foreign domestic helper for one month. Then, she returned to Hong Kong to look for employment, but in vain. She learned about non-refoulement protection in Hong Kong. She surrendered to the Immigration Department on 29 May 2019 and raised a non-refoulement claim by way of written signification on the same day.

The finding of the Board

5.  The Applicant testified before the Board. The Board found the centerpiece of her claim was made up of bare assertions unsupported by any objective evidence. These assertions include her romantic relationship with her ex-boyfriend, his association with the BJP, the assaults and harassment, his ability to utilize BJP’s resources to hunt her down wherever she moved to in India and that she could not access state protection because the police sided with the BJP.

6.  The Board also found significant discrepancies or inconsistencies among her evidence in her non-refoulement claim form (the “NCF”), her record of interview and her testimony before the Board. She was unable to explain those inconsistencies and the implausibilities in her case. For example, she could not explain why being a supporter of the Gorkhaland movement since youth and knowing that her ex-boyfriend was a member of the BJP which opposed the Gorkhaland movement, she would have developed a relationship with him; and why their political difference would have triggered the breakdown of their relationship. Under the circumstances, the Board found it implausible that she would have commenced a romantic relationship with him. Even if she had, the Board could not accept the relationship was uneventful for three years. It did not accept the Applicant once had a boyfriend in her home country who was a gangster associated with the BJP.

7.  The Applicant claimed that her ex-boyfriend as a member of the BJP and could utilize BJP’s resources to hunt her down wherever she moves to in India. Yet, despite they had been dating for three years, she could not tell how he was associated with the gang and the BJP, his seniority with his gang, its size and whether he held any official post in the BJP. Other than her bare assertions, there was no objective evidence to support her claim that her ex-boyfriend had access to BJP’s huge network and resources for his personal use to track her down in India. The Board rejected her assertion.

8.  The Applicant claimed that her ex-boyfriend harassed her on numerous occasions at home or wherever they met. Yet, she did not seek assistance from the police on her mere belief that the police had taken side with the BJP. The Board found her assertion was not supported by objective evidence. On the contrary, it found on the basis of authoritative and credible country of origin information (“COI”) that adequate state protection was available. It also found internal relocation feasible to avoid the risk of harm.   

9.  The Board also considered her assertions of assault, which were not supported by objective evidence, could not stand with her claim that her ex-boyfriend wanted to remedy their relationship. On the other hand, despite her ex-boyfriend had ample opportunities to seriously harm the Applicant, he had not inflicted any serious injuries on her since their relationship broke down towards the end of 2015. The Board was not persuaded that she departed India in June 2017 out of fear of harm from her ex-boyfriend. It did not accept there is a real risk that the Applicant will be ill-treated or at risk of arbitrary deprivation of her life, if refouled. It further found, even if the Applicant’s account is accepted, her ex-boyfriend assaulted her due to his personal grudge or hatred, and not on account of any of the reasons under the 1951 Convention relating to the status of refugees and its 1967 Protocol.

10.  Applying the law applicable to the non-refoulement protection under the Unified Screening Mechanism (“USM”) to the above facts, the Board found even on the basis of the factual case as asserted by the Applicant, she had failed to establish her entitlement to protection under any of the applicable grounds under the USM.

11.  For the above reasons, the Board dismissed the Applicant’s appeal against the Board’s Decision.

The legal principles applicable to judicial review

12.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

13.  After the above legal principles were explained to the Applicant, she said she did not think the law is unfair, that there was no procedural unfairness and that the Decision is rational. She asked the Court to look carefully at the Decision. If she was requesting the Court to consider the Decision afresh, it is not an option open to this Court in a judicial review. The Court will certainly examine the Decision with anxious scrutiny for errors of law, procedural unfairness or irrationality in the Decision.

14.  In her Form 86, the Applicant advanced the following eight grounds for judicial review:

(1)  The Decision is wrong, unfair and unreasonable:

15.  This is contrary to the Applicant’s confirmation in paragraph 13 that she had no complaint about errors of law, procedural unfairness or irrationality in the decision. This ground is lacking in particulars. When asked, she was unable to provide any particulars of errors of law, unfairness or irrationality in the Decision. All that she could say was that the Decision was made too fast. She asked the Court to consider the Decision carefully. The Decision shows that it was delivered fourteen days after the date of hearing. In that sense, it was fast. Speed by itself is not indicative of errors of law, unfairness or irrationality. It was also not that fast as to suggest that the Decision was a pre-determined one, which was irresponsibly made or not adequately considered. The issue is whether the Decision was made as a result of errors of law, procedural unfairness or irrationality. This Court will not take the Applicant’s words at face value. It will revisit these issues in its overall scrutiny of the immigration officer’s decision.

(2)  Failure to consider the presence of state acquiescence in her case:

16.  State acquiescence was not even featured in the Applicant’s case. There was no evidence to suggest that the Applicant was persecuted by state actors. In fact, the Board found, even assuming that she had suffered ill-treatment, there was no evidence that her ex-boyfriend was acting in an official capacity.

(3)  The immigration officer acted unreasonably and procedurally unfairly by placing too much reliance on COI and failed to take her personal background into account:

17.  The Board referred to a lot of COI about state protection, police corruption, government’s efforts to improve police efficiency and effectiveness and internal relocation. When asked for particulars of the COI which the Applicant complained that the Board had given too much weight to and the COI favourable to the Applicant which the Board had failed to give adequate weight to, she was unable to provide any. She only reiterated that her life would be in danger, if returned to India. In any event, the COI considered by the Board were all from independent and credible sources. The weight to be given to any particular piece of COI is a fact finding solely within the realm of the Board. The Court will revisit this issue in its overall scrutiny of the Board’s Decision.

(4)  The Board failed to take into account or give enough weight to such argument before reaching the Decision:

18.  Again, the Applicant was unable to identify the argument or arguments which she accused the Board of having failed to take into account or give enough weight to.  The weight to be attach to her argument is a finding of fact solely for the Board, which this Court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the Decision. While it is difficult to examine an unidentified error, the Court will try its best endeavour to focus its attention on the reasons of the Board’s Decision in this context in its overall scrutiny of the Decision.

(5)  The Board failed to attain the high standard of fairness:

19.  Again, the Applicant was unable to give particulars of the Board’s failure. She only repeated that the Decision was made too fast. This argument is rejected for reasons as given in paragraph 15 above.

(6)  The Board acted improperly and/or unfairly when assessing whether to accept or not to accept her explanations and unreasonably required her to respond to questions that she was not in a position to offer any response:

20.  The Applicant was unable to explain how the Board acted improperly or unfairly when assessing whether to accept her explanation. She could not even identify the questions which she was unable to offer any response and explain why she could not. She said she was not ‘open up’. This ground could not be substantiated.

(7)  The Decision is irrational as the Board ought to have allowed her appeal;

21.  The Applicant could not give any reasons why she considered the Decision irrational. Earlier, she had confirmed to the Court that the Decision was not irrational.

(8)  The Applicant asked the Court to grant her leave to apply:

22.  This just her prayer for leave and not a ground of application.

23.  In conclusion, there is no substance in any of the Applicant’s grounds of application. In the absence of particulars, the Court will consider this ground in its overall scrutiny of the immigration officer’s Decision.

Overall scrutiny

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

25.  The Board assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability. It found multiple and significant discrepancies among her written evidence before the Director, her screening interview, her non-refoulement claim form and her testimony as regards the centrepiece of her claims. The Board’s primary finding is that the Applicant was not credible. It rejected her evidence. It did not accept she had an ex-boyfriend, that she and her ex-boyfriend had a romantic relationship for three years, that he was a gangster and associated with the BJP, that he had assaulted or ill-treated her and that he could use BJP’s resources to track her down anywhere in India. It did not accept there would be any real risk that the Applicant will be ill-treated or her life would be at risk of arbitrary deprivation, if refouled to India.

26.  On those findings, the Applicant had failed to establish the factual basis to support her claims for non-refoulement protection under any of the applicable grounds under the USM. However, the Board went further. It assessed her claims on the basis of the factual case as she asserted after making some further finding of secondary facts and after taking into consideration of the COI. It found that the injuries she suffered did not attain the minimum level of severity and did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance, nor were they inflicted for a Convention reason. It found her ex-boyfriend was not a state actor or acting in any official capacity when inflicting ill-treatment on her. It came to the conclusion that the gravity of ill-treatment she would face was low and her fears were not well-founded.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claims for non-refoulement protection under any of the applicable grounds under the USM.

27.  All these are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such findings were made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

28.  For the above reasons, the Applicant’s leave application is refused.

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