|
HCAL 701/2023
[2026] HKCFI 3546
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 701 OF 2023
|
BETWEEN
|
| |
Kulwinder Kaur |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.
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 12 May 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 8 May 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000701_2023_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 22 November 2022, which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.
4. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.
5. Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to India, she would be harmed or killed by her uncle due to a land dispute.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 11 June 2026.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. The applicant did not identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 12 May 2023.
Discussion
13. 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).
14. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any ground being advanced by the applicant for the intended judicial review.
15. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 21 April 2023. Thus, the applicant was given the opportunity to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
17. The Board laid out its findings and assessment of the credibility of the applicant’s claims in paragraphs 28 to 44 of the Board’s Decision, and it is not necessary to repeat the same here.
18. In gist, the Board found that the applicant’s claims had no credibility and the applicant was not a credible witness because of the multiple and material inconsistencies in the applicant’s evidence, her vague and evasive evidence, as well as her making of significant new claims for the first time at the Board’s hearing and her non-persuasive explanations.
19. The Board rejected that: (1) the applicant had any land dispute with her uncle; (2) the uncle ever poured hot tea on her or otherwise assaulted or threatened her or her parents; (3) the uncle had taken possession of her land or prevented her family from farming the land; (4) the applicant or her family made any complaints to the police against the uncle and the police failed to assist them; (5) the applicant moved to live with an aunt, or went to Delhi, or came to Hong Kong in fear of harm of her uncle; (6) anyone told the applicant that her father was killed; and (7) the applicant had lost contact with her mother.
20. The Board considered that the applicant had fabricated the above-mentioned claims so as to create a basis to apply for non-refoulement protection. Thus, the Board found that the applicant had not established that she would face a real risk of ill-treatment, torture, arbitrary deprivation of life or persecution at the hands of her uncle should she return to India.
21. The Board did not consider availability of state protection to the applicant. However, as the applicant’s claim was rejected in its entirety, it is not necessary for the Board to consider the availability of state protection.
22. 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).
23. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
24. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
25. 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 error 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.
26. 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of June 2026
| |
(Gladys LEE)
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on: 17/06/2026
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 17/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21228
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1066/22 (Formerly RBCZ 5000938/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|