RAI SHOVA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2332/2024

[2026] HKCFI 4460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2332 OF 2024

Application for Leave to Apply for Judicial Review

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

Following:

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

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of India who arrived in Hong Kong on 22 July 2022 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 July 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 May 2024, she did not depart and instead overstayed, and on 4 June 2024 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by some local villagers in her home village over their religious dispute.

2.  The Applicant was born and raised in a Hindu family in a village in Kalimpong, West Bengal, India. After leaving school she worked as a saleslady and a tailor in her home village to make her living.

3.  In July 2022 she came to Hong Kong to work as a foreign domestic helper, during which she befriended some fellow workers who were Christians and gradually became interested in their religion of Christianity by attending their religious activities in their church.

4.  Eventually she decided to become a Christian, and did so in March 2023, and thereafter she informed her brother in India and shared with him things about Christianity that her brother also became interested and started to learn about the religion by attending the church in his home village, but when his fellow Hindu villagers heard about it, they became furious about his intended conversion into Christianity and started to threaten him, and some of the local Hindu gangsters even came to his home to harass and threaten him to leave the village if he dared to convert his religion or else they would kill him as well as the Applicant whom they blamed for having influenced her brother in this way.

5.  As a result, the Applicant became fearful for her safety, and so after her last employment was prematurely terminated in May 2024, she was afraid to return to India and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 July 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 21 August 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Hindu villagers in her home district upon her return to India as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than just angry words and empty threats and that her brother is still residing safely in her home village, that in any event it was a private religious dispute between them within their home village only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Mizoram or Nagaland where there are large populations of Christians and where it would be difficult if not impossible for anyone to locate her.

8.  On 30 August 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 5 November 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 November 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from some local Hindu villagers in her home district over her alleged religious dispute that caused her to overstay in Hong Kong to seek protection, that even if her account of events as told by her brother in India were true that there was no reliable evidence of any real intention of those Hindu villagers to seriously harm or kill her other than just angry words and empty threats, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 2 December 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant has recently on 8 July 2026 in writing requested to withdraw her application as her issue in her home country has been resolved that she now wants to return to India as soon as possible.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave 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