SUBBA RUPA DEBI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1467/2023

[2026] HKCFI 4735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1467 OF 2023

Application for leave to apply for judicial review

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

Following:

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

1.  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 21 August 2023, 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 31 July 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001467_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 August 2021, which rejected her non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to India, she would be harmed or killed by supporters or members of Gorkha National Liberation Front (“GNLF”) and Communist Party of India (Marxist) (“CPI(M)”). The applicant alleged that GNLF asked her for donations, and if she did not pay, she would be killed. The applicant also alleged that CPI(M) would kill her because her deceased husband had supported GNLF until 2008.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 13 August 2026.

6.  When this court asked the applicant to elaborate on the grounds of her intended judicial review which were stated in her affirmation dated 21 August 2023, she merely replied that she would rely on what was stated there and she had nothing more to say.

Grounds for judicial review

7.  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).

8.  The applicant did not advance any grounds for the intended judicial review in Form 86.

9.  In her supporting affirmation dated 21 August 2023, apart from stating that she did not agree with the Board’s Decision, the applicant advanced 8 grounds under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job;

(6)  She asked the court to help her and save her life;

(7)  She is a woman; and

(8)  She asked this court to consider her application.

10.  As aforesaid, at the oral hearing, the applicant only said that she would rely on the grounds stated in her affirmation and did not elaborate on any of them.

Discussion

11.  First of all, all the grounds (except grounds (6), (7) and (8) which are not grounds at all) that were contained in the applicant’s affirmation were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

12.  She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

13.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

14.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

15.  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).

16.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

17.  In assessing the appeal by the applicant, the Board held an oral hearing on 9 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

18.  As can be seen from the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing in order to understand her case better. The Board gave full and detailed reasoning in rejecting the applicant’s claims.

19.  In paragraphs 142 to 152 of the Board’s Decision, the Board had given full reasons for rejecting material information in the applicant’s claims because they were of no credence. The material information that the Board rejected included the following:-

(1)  The applicant’s husband was a member of GNLF;

(2)  On 25 March 2008, the applicant saw a gunshot wound on the body of her husband. Her husband was killed either by the Indian Force or members of CPI(M) or jointly by them;

(3)  After the death of her husband, and before the applicant went to Nepal, members of CPI(M) were looking for her to harm her;

(4)  In 2018, members of GNLF were looking for her for donations. If she did not pay, she would be killed; and

(5)  In 2020 and early 2021, members of GNLF and CPI(M) were looking for her to harm her.

20.  In gist, the Board found crucial aspects of the applicant’s core claim were either contradictory or had been exaggerated and embellished. The applicant changed parts of her accounts when she testified. Her testimony was a manifestation of inconsistencies, inventions and implausibility. The Board found that the applicant was not a credible witness, and rejected her core account. The Board concluded that there were serious credibility problems such that the Board was unwilling to attach any credence regarding the applicant’s information as summarised in the paragraphs above.

21.  In the Board’s assessment of the applicant’s case against all the applicable grounds under the USM, the Board found that there was no individual act of persecution on her. There was no evidence at all of the applicant being persecuted for any of the Convention reasons. The applicant had not suffered any harm or threats of death or harm from supporters or members of CPI(M) and GNLF. The alleged threats were all hearsay. The evidence did not support that state actors were involved in the ill-treatment of the applicant.

22.  As can be seen from paragraphs 188 to 217 of the Board’s Decision, the Board had gone through very extensive country of origin information (“COI”) and found that in general, the Indian government was both willing and able to offer effective protection. Even if the alleged deaths, harms or threats of death or harm had some credence, the applicant’s evidence did not show that the government of India was unwilling and/or unable to provide effective protection. The applicant had not reasonably exhausted all avenues of state protection open to her. There was no clear and convincing evidence to demonstrate that the alleged deaths, harms, or threats of death or harm, were knowingly tolerated by the authorities. Moreover, there was no clear and convincing evidence to show that the government of India refused, or was unable, to offer effective protection.

23.  As to internal relocation, the Board had laid out in paragraphs 218 to 220 of the Board’s Decision its reasons for concluding that the applicant could reasonably live without fear of the alleged harms and undue hardship, if she relocated to other parts of India such as Mumbai, Delhi and Bangalore.

24.  Thus, the Board concluded that the applicant was not at a real risk of any of the proscribed forms of harm under the USM.

25.  The finding of facts, including 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.

26.  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.

27.  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

28.  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