CHHETRI DEBIKA alias CHETRI RITA v. TORTURE CLAIMS APPEAL BOARD

HCAL 141/2024

[2026] HKCFI 1557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 141 OF 2024

  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 national of India in her 40s who used to work in Hong Kong as a foreign domestic helper under the identity of Chetri Rita until 7 April 2019 when her employment was terminated and that she returned to India on the same day, but some 3 months later on 11 July 2019 she returned to Hong Kong under the identity of Chhetri Debika to work as a foreign domestic helper, but when her last employment contract was completed on 11 July 2022, she did not depart and instead overstayed, and was arrested on 20 July 2022.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her father’s creditor for failing to help pay her father’s debts.  

2.  The Applicant was born and raised in Chota Kagjhora, Darjeeling, West Bengal, India.  After leaving school she worked as a part-time helper in her home district to make her living, and in 2011 she started coming to Hong Kong to work as a foreign domestic helper and made monthly remittances to her father to help him to repay his debts incurred for his medical expenses.

3.  However, after her last employment was terminated in July 2022, and when she was unable to remit any money to her father to help repay his debts, his creditor started to make threats against her and her father that she was afraid to return to India and therefore overstayed in Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 June 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.  By a Notice of Decision dated 4 August 2023 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her father’s creditor upon her return to India as low due to the absence of any past ill-treatment from her father’s creditor, that there is no evidence of any real intention of her father’s creditor to seriously harm or kill her given that her father was still alive and unharmed by his creditor all these years, that in any event it was a private monetary dispute between her father and his creditor 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”) show that reasonable internal relocation alternatives are available in India with a large population of 1.3 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 father’s creditor to locate her.

6.  On 17 August 2023 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 16 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 27 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from any creditor of her father over any debts of his that caused her to overstay in Hong Kong to seek protection, that it was not satisfied that the Applicant or her father had any outstanding debts in her home country or that they would face any real chance of any serious harm in connection with any debts anywhere in India in the reasonably foreseeable future upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.    

8.  On 12 January 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she puts forward the following grounds for her intended challenge:

(1)   That the Adjudicator for no good reason did not believe her or properly consider her problem or give her time;

(2)   That the interpreter was not a good translator and failed to properly interpret her evidence to the Board.

9.  These are however just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the interpreter fail to properly interpret her evidence to the Board.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

10.  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 his 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.

11.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also agreed and confirmed by the Board, 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 23 January 2026 in writing requested to withdraw her application as her issue in her home country has been resolved that she now wants to return to India as soon as possible.

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 of no more issue 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