RE TAMANG JANAK KUMARI

CACV 214/2026, [2026] HKCA 981

On Appeal From [2026] HKCFI 1039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 214 OF 2026

(ON APPEAL FROM HCAL NO. 830 OF 2021)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  Jeffrey Chau (“the Judge”)  given on 2 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 18 May 2021 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 1 March 2021 of the Director of Immigration (“the Director”)  which had in turn rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of India born in 1988. She arrived in Hong Kong on 9 July 2014 to work as a foreign domestic helper until her contract was pre-maturely terminated on 10 May 2017. Subsequently, she overstayed and surrendered to the Immigration Department on 11 January 2021, where she lodged her non-refoulement claim on the same day.  Her claim was made on the basis that if she returned to India, she would be harmed or killed by a loan shark named Mr Deepak (“Deepak”)  as she had failed to repay a loan of 1 million Indian Rupees borrowed to pay her employment agency.  Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal were all set out in the Board’s decision.[6] 

3.  The Board did not accept the applicant’s assertion that she had borrowed 1 million Indian Rupees from Deepak.  First, the Board found the applicant to be an unreliable and dishonest witness. Her evidence regarding the loan agreement, especially concerning whether Deepak allowed her to start paying monthly interest before or after her arrival in Hong Kong, was not credible.  Second, Deepak’s delay in demanding repayment, despite the proximity of the applicant’s home and the alleged severity of the threat, was implausible.   Third, the Board found it inexplicable that even during periods when the applicant was employed and had income, she did not repay the monthly interest.  Fourth, there was a significant delay in her lodging the non-refoulement claim, which the Board found to be inconsistent with the conduct of a genuine protection-seeker. 

4.  The Board further considered that, even if her factual account were accepted, she could avoid any risk of harm from the loan shark through internal relocation within India (e.g. to larger cities like Mumbai and Delhi)  and from state protection, though internal relocation was assessed as the better option.  The Board found that the dispute was a purely private debt matter. The Board concluded that the applicant was not able to substantiate her claim under any of the applicable grounds. 

The Judge’s decision

5.  By a Form 86 filed on 7 June 2021, the applicant contended that (1)  the Director and the Board reached wrong decisions which were not reasonable or fair, (2)  the right to life was subject to constitutional protections and the criminal law. The Judge refused leave to apply for judicial review for the reasons given at [4]-[10] of the Form CALL-1. In summary, the Judge considered that the applicant’s case was plainly hopeless, her evidence having been rejected; the purported grounds stated in the Form 86 were vague and generic and did not point to any error of law, procedural unfairness or irrationality.

The present appeal

6.  On 9 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were essentially that: (1)  the Judge treated the leave application as a final hearing; (2)  the Judge failed to consider her unrepresented status and her lack of legal knowledge in preparing the Form 86; (3)  the Board was irrational and unfair in treating her delay in lodging the non-refoulement claim as adverse to her credibility; (4)  the Board considered that state protection was not a good option yet found that protection was available, constituting an arguable error in its reasoning; (5)  on the issue of internal relocation, there was no analysis of safety and reasonableness; (6)  the Board’s conclusion on BOR 2 and BOR 3 risks were arguably unsafe; (7)  the Board wrongly assessed that her claim was based on a private dispute and failed to examine the real risk of harm in the absence of state protection.

7.  The applicant has lodged written submissions in which she expanded on the grounds in the Notice of Appeal. We will deal with these in more detail below.

8.  At the hearing, the applicant mentioned that she had hospital appointments, but agreed that they were not of any relevance to her appeal.  

Discussion

9.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The 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 Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

10.  It is well-established that the assessment of evidence, country-of-origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

Our decision

11.  We are of the view that the grounds and submissions made by the applicant do not amount to viable grounds of appeal. 

12.  First, we do not agree that it is reasonably arguable that the Board made contradictory assessment on the issue of state protection. The Notice of Appeal stated that the Board made a contradictory assessment that state protection was not a good option for the applicant and yet found that it was available to the applicant thus negating the risk of harm.  The applicant’s written submissions further submitted that these two findings are mutually exclusive because state protection would not be effective if the police did not intervene promptly, and that the Judge had overlooked this error of the Board.  

13.  In its decision, the Board considered that in order for the applicant to avoid Deepak and his people, it would be better for her to internally relocate (e.g. to larger cities such as Mumbai or Delhi)  than resorting to state protection, because the applicant might not be able to obtain timely help from the police if Deepak was able to locate her and subsequently attack her at her home.[7] In so finding, the Board did not conclude that state protection was not available to the applicant; the Board was simply evaluating the options available to the applicant to avoid harm.  Hence, there was nothing contradictory in the Board’s finding that whilst state protection was available, it would be a less desirable option than internal relocation, having regard to the facts of the claim and the available country-of-origin information.  

14.  Second, we do not agree with the applicant that there is an arguable issue with the Board’s assessment of the private nature of the dispute.  The applicant contended in her Notice of Appeal that the Board failed to consider whether there was a real risk that the police would not have provided effective protection, and whether such failure would have amounted to state acquiescence.  The fact is that neither the applicant nor her mother had sought help from the police.  There was no basis for the applicant to claim that the police did not provide her/them with any assistance.  The Board was aware of the applicant’s concern that the police are oblivious to these debt-pursuing cases and take no action in private disputes.[8] However, there was no evidence showing any state involvement or that Deepak or his subordinates were public officials or were acting in such capacities.[9]  In the premises, the Board assessed that the applicant’s claim did not fall within the ambit of torture because any action of the creditor taken against the applicant would have been carried out in his personal and private capacity. 

15.  Third, we see no arguable case that the Board’s assessment as regards internal relocation was incomplete or unsafe.  The applicant complained that the Board did not consider the safety or reasonableness aspect of this option.  We do not agree. The Board noted that the applicant, being an able-bodied adult, had acquired work experience as a housemaid in the neighbourhood from 2010 to 2017.[10]   In addition, the Board considered that given the vast population of big cities in India such as Mumbai and Delhi and the size of the country, it would not be unduly harsh or unreasonable for the applicant to relocate to an area other than her home village to avoid Deepak and his men.[11]  This was an assessment based on the Board’s due considerations of the applicant’s personal circumstances and the objective country-of-origin information. 

16.  Fourth, we do not agree that the Board’s finding about the applicant’s credibility was irrational or unfair. The applicant argued that the Board was wrong to find that it was inconceivable for the loan shark to wait for 10 months before pursuing the applicant for repayment after she stopped paying the monthly interest.[12] The applicant explained in her written submissions that a creditor may choose to wait until the debtor is abroad (i.e. Hong Kong)  before taking action on the debt.  She argued that the Board had used “common sense” instead of relying on the actual evidence in finding against her on credibility grounds.  The applicant further argued in her written submissions that the Board’s credibility findings lacked clear explanation; it did not explain how those findings impact on the risk assessment.  We see no substance in this argument.   The Board gave detailed reasons for rejecting the applicant’s claim on the loan based on the inconsistencies identified in material aspects of her evidence.[13]   In analysing the evidence, the Board was entitled to find that it did not consistently or plausibly support the applicant’s account of the loan, the terms of repayment agreed between the parties, and the threats made by Deepak and his men.   The Board’s evaluation of the evidence was not based on common sense as such but on the applicant’s own oral and written testimony.  In any event, there was nothing wrong for the Board, having regard to the evidence before it and the significant delay in bringing the non-refoulement claim, to question the veracity of the applicant’s claim.   

17.  Fifth, there is no merit in this complaint that the Board’s conclusion on the BOR 2 and 3 risks was unsafe because it was based on the availability of internal relocation and state protection and the likelihood of the harm materialising.   The applicant cited these general assertions without pointing to any errors of the Board in assessing the risk of harm in accordance with the relevant threshold requirements.   Specifically, the Board found that this case did not involve genocide or a death sentence, hence the applicant’s claim on Right to Life under BOR 2 risk ground was not engaged.[14]   Further, the Board primarily found that the applicant failed to establish the two main requirements to succeed on the BOR 3 risk ground (i.e. ill-treatment attaining a minimum level of severity, and a genuine and substantial risk of being subjected to such treatment).[15] In other words, the Board did not reject her claim simply based on the likelihood of harm and the availability of relocation and protection, as alleged by the applicant.  

18.  Sixth, there is nothing in the ground that the judge failed to consider the applicant’s unrepresented status or lack of legal knowledge. The applicant complained that the Judge dismissed her grounds as “vague and generic”, ignoring the fact that she had no legal knowledge, assistance or representation in preparing her Form 86.  As a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11].  In any event, we do not see how the Judge, in light of the applicant’s unrepresented status and lack of legal knowledge, failed to consider whether the applicant’s intended challenge of the Board’s decision was reasonably arguable.   Notwithstanding her arguments that she had no lawyer to assist her, it would appear from the Notice of Appeal and the written submissions that the applicant received legal and language assistance in their preparation.  They advanced legal arguments in some detail.   Therefore, we do not accept that this ground is made out or that there had been procedural unfairness in the proceedings before the Board or the Judge due to the lack of legal assistance or representation.   

19.  Finally, we do not agree with the complaint that the Judge treated the leave application like a final hearing, or that the Judge failed to address the legal errors or reasoning of the Board.  In the first place, the applicant did not raise any grounds in support of her application for leave except to state the broad principles which did not engage with the Board’s ruling.  We are satisfied that the Judge gave proper and adequate reasons for his conclusion.

20.  As the applicant has not demonstrated any error in the decision of the Judge or advanced any viable ground of appeal against the Judge’s decision, we dismiss the appeal.