MOKTAN TAMANG TINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2479/2020

[2026] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2479 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

(1)  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

(2)  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 21 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 27 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 30 November 2018.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same.

Background

4.  The Applicant is a national of the India. She seeks non-refoulement protection on the basis that she would be harmed or killed by (i) one Sandeep Lama (“SL”) who was affiliated with the Gorkha National Liberation Front party (“GNLF”) and (ii) people from a rival party to GNLF. The Applicant was once a member of GNLF but stopped working for GLNF since 2001 upon her marriage. She was invited by SL, an influential member of GNLF, to rejoin the party in 2016 which the Applicant refused. The Applicant said that SL then raped her, but when she reported the matter to the police they refused assistance because SL had influence. SL knew that the Applicant reported the matter to the police and came to rape her again. The Applicant then fled from the area. She subsequently heard that SL filed false complaints against her for murdering a prominent local political leader of a rival party. She became afraid of the supporters of that political party (on the assumption that they would believe she was the murderer) and the police (who she believed would be looking to arrest her). The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In her affirmation in support, she merely stated that she wish to provide a more complete picture to the Court.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-10, 36-37] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [12-27, 33-35, 43-51, 65, 68-70, 74-75] and properly considering Country of Origin information [5, 11, 24, 55-60, 90], the Applicant’s allegations were insufficient to make out any of the applicable grounds [28-32, 38-42, 62-64, 66-67, 71-73, 76-81, 91-94].

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [63, 82-90]. There were conclusions that the TCAB was fully entitled to come to.

11.  At the hearing the Applicant informed me that she was applying for a dependent visa in Hong Kong and the application was in the process of being handled. This however is irrelevant to the issues I need to deal with, namely the correctness (in the public law sense) of the TCAB Decision.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review 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