SHERPA DOMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2027/2020

[2025] HKCFI 5259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2027 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 20 July 2020”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 8 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 24 October 2018 without identifying the decision maker.

2.  However, neither the Torture Claims Appeal Board (“the Board”) nor the Director of Immigration (“the Director”) had made any decision regarding the applicant’s non-refoulement claim on 24 October 2018.

3.  The Director made a decision dated 11 October 2018 (“the Director’s Decision), which rejected the applicant’s non-refoulement claim, while the Board made its decision dated 20 July 2020 (“the Board’s Decision”) affirming the Director’s Decision.  

4.  At the oral hearing before this court on 21 August 2025, the applicant confirmed that the Board’s Decision was the subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002027_2020_files/the_Board's_Decision.pdf

5.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Director’s Decision was affirmed.

Amendments 

6.  In Form 86, the applicant named both the Board and the Director as the putative respondents but spelt the Board’s name wrong.  Further, she did not name any putative interested party.

7.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

8.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

9.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision, and it is so amended on this court’s own motion.

The applicant’s case

10.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, she feared serious harm due to her involvement with the Gorkha National Liberation Front (“GNLF”) and the closure of the Axis Bank in which she was employed as a teller.  She claimed that some of her former customers at the Axis Bank blamed her for the loss of their money when the bank closed down without any prior notice in early 2014 and that some of these customers threatened her because they were members of the Gorkha Janmukti Morcha party (“GJM”), an opposition party to GNLF.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application.  Her case was heard on 21 August 2025.

13.  At the hearing, the applicant submitted an undated and unsigned letter which she said contained grounds on which she wanted to rely in the Leave Application.  However, when this court asked her to elaborate on the grounds stated therein, she had nothing to add.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 8 October 2020. 

16.  As mentioned, the applicant relied on the undated and unsigned letter submitted at the oral hearing before this court without any elaboration as her grounds for the Leave Application.

17.  In the said letter, the applicant first stated that the intended judicial review was against both the Board’s Decision and the Director’s Decision.  Apart from stating that she was married to a local man and has a daughter with him, she merely stated some general grounds that her problem in her country was still there, it was not safe for her to return and there were procedural impropriety, irrationality, error or misdirection in law, etc.

18.  The contents as stated in the said letter were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  The applicant had put forward these standard grounds without any regard to her own situation.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

19.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the Director’s Decision cannot be the subject matter of the Leave Application.  The grounds that were advanced against the Director’s Decision can be simply ignored.

20.  The facts that the applicant was married to a local man and has a daughter here in Hong Kong are irrelevant to the Leave Application.

21.  Her alleged danger upon refoulement had already been assessed and determined by the Board.  If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

22.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

23.  Thus, the general assertions put forward by the applicant, which merely contained “key words” such as there were procedural impropriety, irrationality, error or misdirection in law, etc cannot help the applicant at all.

24.  Moreover, the applicant’s accusation that the Board had failed to conduct sufficient inquiry into the relevant country of origin conditions is totally unfounded.  As can be seen from the Board’s Decision, the Board had gone through extensive country of origin information (“COI”), which were fully referenced, in order to investigate the relevant country conditions of the applicant’s case.

25.  Thus, this court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

26.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

27.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

28.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 5 May 2020.  However, the applicant was absent and failed to contact the Board to explain her non-attendance.  None of the letters sent to the applicant by the Board was returned unclaimed.  The Board was satisfied that they were sent to the last known address that she provided to the Board, which was the address on her Notice of Appeal.  In accordance with section 37ZV of the Immigration Ordinance, the applicant was presumed, in the absence of evidence to the contrary, to have received each of those letters on the second working day after they were sent.  The Board thus considered it appropriate to proceed to determine the applicant’s appeal/petition based on all the available evidence.

29.  As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims.  The Board found a number of issues with the credibility of the applicant’s claims.  The problems identified were laid out in paragraphs 31 to 33 of the Board’s Decision.

30.  Given the problems identified with the written claims that the applicant made and her failure to attend the Board’s hearing in order to answer questions about those claims, the Board did not consider that she had made a genuine effort to substantiate her story.  Accordingly, the Board was not satisfied as to the applicant’s general credibility or the credibility of her claims.

31.  The Board found that the applicant had failed to establish that there were substantial grounds which supported the conclusion that she would face a real risk of ill-treatment, torture, persecution or arbitrary deprivation of life upon refoulement to India.  The Board concluded that the applicant’s claims to fear harm by members of the GJM or other former customers of the Axis Bank were not credible.

32.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

33.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

34.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

35.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way for the Board reached its decision.

36.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

37.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

38.  For reasons aforesaid, the Leave Application 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