SIMANJOT KAUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 339/2026

[2026] HKCFI 3756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 339 OF 2026

  Application for Leave to Apply for Judicial Review

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

Following:

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

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of India who arrived in Hong Kong on 30 January 2025 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 January 2027 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 June 2025, she did not depart and instead overstayed, and on 30 July 2025 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her abusive husband over their domestic disputes. 

2.  The Applicant was born and raised in Village Lohke Kalan, District Firozpur, Punjab, India.  After leaving school she worked as a patients care assistant and a teacher to make her living, later married her husband and moved to his home in Village Ghagge in District Tarn Taran to raise a family with a daughter. 

3.  However, she soon discovered that her husband had a bad temper and with a drug addiction that whenever he lost his temper, he would abuse the Applicant by slapping and hitting her at will causing her both fear and distress. 

4.  Eventually in mid-2021 the Applicant found herself unable to tolerate her husband’s abuses any further and therefore moved with her daughter back to her parents’ home in Village Lohke Kalan, whereupon her husband would demand that she returned with their daughter back to his home, and when the Applicant refused, he then made death threats against her.  

5.  In order to get away from her husband’s threats and also to support herself and her daughter, the Applicant in January 2025 came to Hong Kong to work as a foreign domestic helper, but when her employment was prematurely terminated, she was afraid to return to India and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 September 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.  By a Notice of Decision dated 17 October 2025 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 her 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”). 

7.  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 husband upon her return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her over their domestic disputes other than just angry words and empty threats, that in any event it was a private personal dispute between just the 2 of them and within their family 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 where it would be difficult if not impossible for her husband to locate her. 

8.  On 27 October 2025 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 9 December 2025 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 12 December 2025 her appeal was dismissed by the Board which also confirmed the Director’s decision. 

9.  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 her husband that caused her to overstay in Hong Kong to seek protection, that even if her account of events prior to her departure from India were true that there was no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, and that in any event these were private domestic disputes between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to India 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 husband that her claim for non-refoulement protection failed on all applicable grounds. 

10.  On 6 February 2026 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such, and in the absence of any error of law or irrationality 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 for her intended challenge of the Board’s decision. 

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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. 

13.  In the premises, and 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. 

14.  Moreover, the Applicant has recently on 12 May 2026 in writing requested to withdraw her application as it is now safe for her to return to her home country. 

15.  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 that it is safe 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