LIMBU KABITA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 566/2021

[2026] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 566 of 2021

  Application for Leave to Apply for Judicial Review

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

Following;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non refoulement Claims Petition Office as the Putative Respondent and only 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 dated 22 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 April 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 30 August 2018.

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

3.  The Applicant requested for a hearing of this application and she attended the same.  When asked whether she had anything to add, she said she just wanted the court to know that she had a young baby.

Background

4.  The Applicant is a citizen of India.  In gist, she fears being harmed or even killed by her political opponents in India.  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.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

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.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would 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 state any grounds on which the relief is sought, other than stating in his supporting affirmation that, “…There is not safety my country India…life will be ricks[sic] in my country India.  If I will go back to my country India, they will kill me…”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.   

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [87-89].  In particular, the TCAB found that (1) she was not an entirely credible witness, (2) there were significant inconsistencies in her case which it could not ignore, and (3) her claim that she faced a real risk of serious harm, or other proscribed harm, were she be refouled to India, was not credible [69, 84-86]. The conclusion was a nuanced conclusion drawn with the Applicant being given the benefit of the doubt in many critical aspects of her case [70, cf. 71-78]. The conclusion was no doubt correct given, inter alia, that she was able to travel freely and remained in New Delhi for months without being traced or harmed [72] and that her family members were also generally not harmed in India [74].  Having regard to, inter alia, the country of origin information, the TCAB further found that state protection would be available to her [79-82].

10.  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 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