LIMBU ARCHANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 250/2025, [2025] HKCA 968

On Appeal from [2025] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 250 OF 2025

(ON APPEAL FROM HCAL NO 2892 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Background

1.  On 29 April 2025, Deputy High Court Judge K. W. Lung refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  concerning hernon-refoulement claim.[1]  The applicant filed a notice of appeal against the decision on 30 April 2025.

2.  This appeal was scheduled to be heard on 28 October 2025.  Despite the directions from the High Court to the applicant dated 5 September 2025, the applicant failed to lodge written submissions by the stipulated time. As said directions were not complied with, the hearing date has been vacated pursuant thereto.  The Court will deal with this appeal on paper.

3.  The applicant is a national of India.  She last entered Hong Kong on 10 May 2018 to work as a foreign domestic helper.  Her employment contract was terminated on 5 November 2018.  She did not depart Hong Kong thereafter and subsequently overstayed.  She was arrested by the police on 29 March 2019.  She lodged her non-refoulement claim on 1 April 2019 on the basis that she will be harmed by her ex-boyfriend if she returns to India.

4.  By a Notice of Decision dated 31 May 2019, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3],

BOR 3 risk[4] and persecution risk[5].

5.  The applicant filed an appeal against the Director’s decision.  She appeared at the hearing of her appeal before the Board on 26 August 2019.  The Board found that the applicant’s core assertions were fabricated or wholly unreliable, and were not supported by reliable, plausible or rational evidence.  The Board further found that there was no reliable evidence to show that the applicant has suffered physical and/or mental suffering of the requisite severity.  There was also no evidence to show that the state was unwilling or unable to afford protection to the applicant in India.  Besides, the Board considered that it would not be unduly harsh for the applicant to relocate to other places in India to avoid the perceived risk of harm.  Thus, the Board rejected the appeal on 20 September 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 2 October 2019 to seek leave to apply for judicial review against the decision of the Board.  She raised various grounds to challenge the Board’s decision (see the decision of the Judge at [11]).

7.  The hearing of the leave application was conducted before DHCJ K. W. Lung on 24 March 2025.  The Judge found the applicant’s grounds were just bare assertions without evidence in support.  As the applicant failed to show that she had any realistic prospect of success in her proposed judicial review, the Judge refused the leave application on 29 April 2025.

Grounds of appeal

8.  In her notice of appeal filed on 30 April 2025, the applicant stated that the court did not consider her problem in her home country and reiterated that she will be killed by her enemies if she returns to her home country.

Legal principles

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524.  In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s or the Director’s decision afresh as if it were a fresh application for judicial review.

Analysis and disposition

10.  The applicant’s grounds of appeal are not supported by any particulars or evidence.  She has not identified any particular mistake in the Judge’s decision.  She failed to demonstrate that the Judge made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

11.  Thus, the applicant’s appeal is devoid of merit and is dismissed accordingly.