GURUNG KALPANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 739/2023

[2026] HKCFI 3279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 739 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   The Applicant’s Form 86 be amended to name the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.   By a Form 86 filed on 16 May 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 23 November 2022 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 29 October 2021 in refusing the Applicant’s non-refoulement protection claim.  She named the TCAB as both the proposed respondent and the interested party.

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

3.  The Applicant requested for a hearing and she attended the same.  When asked if she had anything to add, she confirmed that she had not.

Background

4.  The Applicant is a national of India.  She seeks non-refoulement protection on the basis that if she was returned, she would be killed by a man she refused to marry and also her relatives who arranged her employment in Hong Kong and she could not pay back.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case 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.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In her affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it and relevant Country of Origin Information [5-31].

8.  The TCAB also bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [32-42, 60-62, 65, 67-72].

9.  After thorough analysis and assessment, the TCAB came to find and conclude that none was made out [43-59, 63-64, 66, 73-75].

10.  Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [76-79].

11.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the 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