SIRIS MAGAR BHIMU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1326/2023

[2026] HKCFI 3090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1326 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 or counsel in open court;

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

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 1 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 25 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/HCAL001326_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 15 March 2023, which rejected her non-refoulement claim.

Amendments

3.  The applicant named the Board and the Director as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent, and only the Director should be the putative interested party.

4.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Nepal, she feared that she would be harmed by her mother and brother, whom she claimed had threatened her because she married a Nepalese man in Hong Kong who was from a different caste to her and she had converted to Christianity.

Disposal on paper

7.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

8.  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).

9.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit dated 1 August 2023. The applicant merely stated in the affidavit that she was not satisfied with the Board’s Decision, she did not want to go back to her country Nepal and she has a husband and a 14 year-old son in Hong Kong.

Discussion

10.  First of all, the applicant’s wish to remain in Hong Kong because she has a family here is not a ground for judicial review.

11.  As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

12.  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).

13.  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.

14.  In assessing the appeal by the applicant, the Board held an oral hearing on 11 July 2023. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The Board found that even if the applicant’s claims were accepted as credible in their entirety, what they amount to was that her mother and brother were angered by her marriage to a man of a different caste and/or religion. Her own evidence was that she had had no contact with them whatsoever since they threatened to “do anything” to her when she told them about the marriage in 2008. They made no specific threat to harm the applicant at all, let alone seriously, or to kill her. The applicant could not offer any basis for her assertion that her mother and brother would certainly continue to be angry with her, or would kill her should she return.

16.  In these circumstances, the Board found it unnecessary to make a finding about the credibility of the applicant’s claims, other than to note that even if they were accepted, they were insufficient to establish her claim for protection, and fell well short of establishing that there were substantial grounds for a finding that she would face a real risk of serious harm or death at the hands of her mother and brother upon refoulement.

17.  Thus, the Board did deal with the applicant’s alleged danger by giving her the benefit of the doubt in the Board’s Decision, and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

18.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that even if the applicant’s claims were accepted, they were insufficient to establish that she faced a real risk of serious harm or death should she return to Nepal, it is not necessary for the Board to consider the availability of state protection.

19.  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).

20.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

21.  The finding of facts 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.

22.  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 error 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.

23.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

24.  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