RAI SITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE[Decision on Leave Application]

HCAL 310/2023

[2026] HKCFI 4448

IN THE HIGH COURT OF THE

	HONG KONG SPECIAL ADMINISTRATIVE REGION	

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 310 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

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

Observations for the Applicant:

By a Form 86 filed on 28 February 2023 (“Form 86”), the applicant applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 22 February 2023 (“Board’s Decision”) confirming the decision of the Director of Immigration (“Director”) dated 13 May 2022 and rejecting the applicant’s non-refoulement claim.

I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.  

  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board.  However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23.  I will therefore provide brief reasons for my decision as follows. 

Discussion

The applicant has submitted the following grounds for the intended application for judicial review:

The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement.  (“1st Intended Ground”)

The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.  (“2nd Intended Ground”)

The Board’s Decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness. (“3rd Intended Ground”)

The Board failed to meet the greater care and duty owed to a self-represented claimant. (“4th Intended Ground”)

In both the Form 86 and her affirmation in support, the applicant added two further complaints that: 

She was not given a fair opportunity to advance submissions in an oral hearing, nor was she invited to submit written submissions.  When the applicant filed the appeal form, she was only asked to write grounds for appeal but that was not counted as an opportunity to reply to submissions made by the representatives of the Director. (“5th Intended Ground”)

The Board has significantly relied on the source of news which was not officially recognised or it was simply hearsay.  The Board also relied on some cases which were fairly outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations that it was safe for the applicant to return to her country of origin.  (“6th Intended Ground”)   

At the hearing on 8 May 2026: 

I referred the applicant to paragraph 26 of the Board’s Decision, where the adjudicator recorded the presence of an interpreter at the appeal hearing and his observation that the applicant was able to communicate effectively, she understood the Board’s proceedings and participated in a meaningful way.  The applicant agreed with the Board’s observation, and also confirmed that, with the assistance of the interpreter, she was able to tell the whole story to the Board.  

The applicant confirmed that she did not have any other submissions to supplement the documents filed in support of the application under the Form 86.  

Insofar as the 1st Intended Ground is concerned, the Board’s Decision contains a detailed analysis of the applicant’s claim.  The Board’s Decision also has, with respect, correctly and comprehensively set out the applicable legal principles.  I do not see any errors in either the summary or the application of those legal principles.  I do not see any room for suggesting that the Board has unlawfully fettered its discretion in any ways.  The 1st Intended Ground is unarguable. 

The 2nd and 4th Intended Grounds are complaints of procedural unfairness.  Again, they contain no particulars.  I do not see any merits in such grounds, not least because of the applicant’s own confirmation at the hearing on 8 May 2026 that she was assisted by the interpreter and was able to tell her whole story to the Board.  Also, paragraph 7 of the Board’s Decision recorded that the applicant was assisted by a lawyer from the Duty Lawyer Service in filing the non-refoulement claim form and the screening interview.  These two grounds are unarguable. 

Relevantly, the 5th Intended Ground is also about procedural fairness.  Factually, the intended ground is inaccurate.  As detailed in paragraphs 8 and 9 of the Board’s Decision, the applicant was given the opportunity to make submissions to the Board.  On the other hand, the representatives of the Director filed a pre-hearing submission that they would rely on the reasons in the Director’s decision, and they were excused from attending the hearing.  As such, I do not see any merits in the complaint as set out in the 5th Intended Ground.

The 3rd Intended Ground is an unparticularised complaint of unreasonableness and/or irrationality of the Board’s Decision.  In the Board’s Decision, after a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board concluded that the applicant was not a credible witness due to multiple, material inconsistencies and implausibility in her evidence together with her non-persuasive explanations. The Board therefore rejected the applicant’s factual assertions that she had taken out loan from loan shark, the loan shark threatened her, and she left home village in fear of harm of the loan shark, which were fabricated claims (see paragraphs 29 to 37 of the Board’s Decision).  The applicant’s new claim advanced at the appeal hearing, that being a single woman by itself should be a ground for non-refoulement as everything was difficult for a single woman in India, was also rejected by the Board as the claim was vague in the extreme and the applicant had not identified any personal risk, persecutor or source of harm, and therefore there was no real risk of the proscribed harm on the available evidence (see paragraphs 39 to 41 of the Board’s Decision).  Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.  

The 6th Intended Ground is based on the reliability of the country of origin information.  In the complete absence of any particulars, there are no merits in this intended ground.  

Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.  

I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 11th day of August 2026

(Wilinda YIU)

for Registrar, High Court

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