TAMANG KALPANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1138/2021

[2026] HKCFI 1892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1138 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 13 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 18 May 2021.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001138_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 December 2020 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendment

3.  In Form 86, the applicant named “TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondent, when only the Board should be so named.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, she would be killed by her husband, other Buddhists and Hindus, as she had converted to Christianity after travelling to Hong Kong.  She asserted that internal relocation was not viable because she had no family ties outside her home area and also claimed that she was unable to seek refuge in other parts of India due to her religion.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 5 March 2026. 

9.  When this court asked her for the grounds for her intended judicial review, she merely replied that she did not know what to say and asked if she could have the chance to live in Hong Kong.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 13 August 2021.

12.  As aforesaid, the applicant did not advance any grounds for her intended judicial review at the oral hearing of the Leave Application, and only asked if she could have the chance to live in Hong Kong.

Discussion

13.  The role 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.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

14.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

15.  In assessing the appeal by the applicant, the Board held an oral hearing on 22 February 2021.  The applicant was present and was given the chance to present her case to the Board in person. 

16.  As can be seen from the Board’s Decision, the Board did carefully assess the applicant’s claim on her two claimed risks of harm, one being the risk of harm from her husband generally and the other being her fear of harm for her conversion from Buddhism to Christianity.  The Board had paid regard to the applicant’s limited education and illiteracy, as well as her background that she had lived most of her life in a relatively remote and isolated rural village in West Bengal.

17.  In respect of the applicant’s risk of harm from her husband generally, the Board accepted that the applicant’s marriage had been, on the whole, an unhappy and unpleasant one, and that her husband was abusive and on occasions inflicted physical ill-treatment upon her.

18.  However, the Board found that she had not suffered serious or life-threatening harm at the hands of her husband.  The Board found that the applicant’s parents had assisted her and her daughter financially and provided them with accommodation at times when the applicant had fled from living with her husband and sought refuge.  Although the applicant was likely still legally married to her husband, the Board accepted that she had not had contact with her husband since about July 2019 after arriving in Hong Kong.  The Board found no credible evidence that the applicant’s husband made any efforts to persuade or even force the applicant to return to cohabit with him on the occasions when she left him to live with her own parents.

19.  Thus, the Board found that if the applicant decided to return to her home village, she would not resume her cohabitation with her husband and that in all likelihood she would return to live with her parents.  The Board was satisfied that the applicant’s husband would not take action to compel her to return to live with him in the marital home if she returned to the home village.  

20.  On the evidence before it, the Board did not find any real risk that the applicant’s husband would engage others to harm the applicant either.  The Board rejected the applicant’s claim made at the oral hearing that he would get other men to harm her.  The Board was satisfied that the applicant did not face a real risk of serious harm in the form of domestic violence from her husband, or any other form of harm, if she returned to her home village.

21.  Regarding the applicant’s risk of harm due to her conversion from Buddhism to Christianity, for the sake of assessment, the Board accepted that the applicant might be perceived to have abandoned her former religion and that she would be perceived by her family and others who knew her to have converted to Christianity if she returned to India.  The Board also afforded her the benefit of the doubt and accepted that her husband did make a threat in around July 2019 shortly after the applicant arrived in Hong Kong.

22.  However, as discussed in paragraph 90 of the Board’s Decision, the Board was not persuaded that the applicant’s husband had demonstrated conduct which suggested there was a real chance that he would pursue her to cause her harm of any kind for reason of her conversion to Christianity.

23.  As to the applicant’s claim that she feared discrimination or harm or both at the hands of villagers and others if she returned to her village, or if she returned to India generally, the Board considered that, given the applicant’s circumstances and relevant country of origin information (“COI”), the risk of the applicant suffering some discrimination existed.  However, the Board did not find that it rose to the level of serious harm, torture or CIDTP[1], or that it amounted to life-threatening ill-treatment.  Based on all the evidence including COI, the Board found the risk that the applicant would suffer serious harm for reason of her conversion to Christianity, if she returned to her home area or elsewhere in India, was not more than remote, and did not present a real risk of harm which was proscribed for the purposes of non-refoulement protection.

24.  In addition, the Board also assessed the difficulty the applicant might face as a single or separated woman, given her lack of education and limited language skills.  Nevertheless, the Board found that the applicant, being in her 30s without mental or physical health disabilities and had work experience as a domestic helper both in Darjeeling and in Hong Kong, would be able to find similar employment through the church which had previously assisted her in India, or otherwise find paid employment of some kind upon her return to India.

25.  Thus, the Board concluded that the applicant did not face any real risk of any of the proscribed forms of harm and had not substantiated a case for non-refoulement protection.

26.  In view of its finding that the applicant did not face a real risk of harm at the hands of her husband, or at the hands of anyone else, the Board found it unnecessary to consider availability of state protection and viability of internal relocation.  This court agrees with the Board in this regard.  Since the Board found that the applicant faced no real risk of any of the proscribed forms of harm upon refoulement, it is not necessary for the Board to consider the availability of state protection.

27.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.  Given the Board’s finding as summarised above, it is not necessary for the Board to consider internal relocation.

29.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is 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