LAMA TANYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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:

Introduction

1.  By a Form 86 filed on 25 November 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 12 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 12 April 2019. 

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

Background

3.  The Applicant is a national of India.  She seeks non-refoulement protection on the basis that she would be harmed or killed by her husband and his people from the Gurkha Land Party (“GLP”, with whom her husband was an active member).  The husband asked the Applicant to sing and dance and to provide entertainment to him and his GLP workers, which the Applicant refused.  The husband and his GLP supporters then assaulted and threatened the Applicant.  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

4.  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.

5.  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. 

6.  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.

7.  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 asserted that the TCAB Decision was “unfair and unreasonable”.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-5, 18-21] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds [6-17] and properly considering Country of Origin information [26-27, 36, 45], the Applicant’s allegations were insufficient to make out any of the applicable grounds [29-36, 37-40, 41-45, 46‑47].

9.  The TCAB specifically held that the Applicant failed to make out a case for non-refoulement protection for 3 reasons, namely (i) she made inconsistent statements (which the Applicant made no explanation) [22(i)], (ii) the Applicant did not immediately raise her non-refoulement claim when she arrived in Hong Kong [22(ii)] and (iii) the TCAB found that she had never been inflicted with any serious injury [22(iii)].  These were conclusions that the TCAB was fully entitled to reach.

10.  The TCAB further concluded that state protection and internal relocation were available on the evidence [28, 36, 45, 48-51].  These were independent reasons for the TCAB to reject the Applicant’s claims.

11.  At the hearing the Applicant further informed me that she had a scheduled medical appointment at a public hospital in December 2025.  This however is irrelevant to the issue 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.

13.  After this Decision was prepared but before it was handed down, by a letter dated 6 February 2026, the Court was informed that the Applicant intended to withdraw the application and that she would wish to return to her home country as soon as possible.  This is an additional reason for me to dismiss the application as there is nothing outstanding in this action: Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19(1)].

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