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HCAL 360/2021
[2026] HKCFI 708
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 360 OF 2021
BETWEEN
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Mukhiya Kavita |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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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 respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 11 January 2021”.
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 16 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) “Determination of Appeal/Petition with a hearing by the Torture Claim Appeal Board Dated 11/01/2021”; and
(2) “Notice of Decision Issued by the Director Of Immigration Dated 27/12/2019”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 11 January 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 December 2019 (“the Director’s Decision”). It is clear that the first decision referred to in Form 86 is the Board’s Decision and the second decision is the Director’s Decision.
3. At the oral hearing before this court on 20 January 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000360_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant failed on credibility and there was no factual basis for the applicant to claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
5. In Form 86, the applicant named “Torture Claim Appeal Board/Non – Refoulement Claims Petition Office” and “Director Of Immigration” as the putative respondents, and “Torture Claim Appeal Board/Non Refoulement Claims Petition Office” and “Director of Immigration” as the putative interested parties.
6. Since the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent and only the Director should be the putative interested party.
7. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
8. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 11 January 2021”.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to India, she would be harmed or killed by a man named Saroj who was a high positioned triad member and worked for political party leaders. The applicant claimed that Saroj had raped her in 2016 and continued to look for her because he had an affection on her and wanted to marry her forcibly, and Saroj did not want her to report the rape to the police.
Oral hearing
11. The applicant requested for an oral hearing and her case was heard on 20 January 2026.
12. However, when this court asked the applicant to elaborate on the grounds of her intended judicial review which were laid out in a two-page document annexed to her supporting affirmation dated 16 March 2021, the applicant said that there was no need to elaborate. She also said that she did not want to go back to India because she had married a Hong Kong resident and was going to deliver a baby in June this year. She had applied for a dependent visa to stay in Hong Kong but had not received the result.
Grounds for judicial review
13. 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).
14. The applicant did not advance any ground for her intended judicial review in Form 86.
15. In the two-page document that was annexed to her supporting affirmation, the applicant cited a number of benchmark cases on non-refoulement claims and asserted some general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those benchmark cases and the general grounds were applicable to her own case.
16. This court will deal with the aforesaid grounds as discussed below.
Discussion
17. There are a total of 13 paragraphs in the two-page document that was annexed to the applicant’s supporting affirmation. The assertions stated therein are summarised as follows:-
(1) The adjudicator reviewed the applicant’s case on paper without a fair hearing;
(2) The adjudicator failed to meet the high standard of procedural fairness in that if the adjudicator sought to challenge the applicant’s credibility, a fair oral hearing was warranted;
(3) The adjudicator took account of irrelevant considerations;
(4) The adjudicator gave no proper reasons for the decision;
(5) The applicant was unrepresented;
(6) The applicant, being “a Indian Nepali”, has been targeted several times and has more evidence to submit to the authorities;
(7) The adjudicator had not taken all COI[1] material from the hearing bundle, had relied on source of news which was not officially recognized or was simply hearsay, and cases which were outdated which resulted in groundless speculations; and
(8) The adjudicator has not taken Paragraphs 92 to 95 into account.
18. First of all, this court notes that some of these general grounds are untrue and not even relevant in the context of the applicant’s case.
19. Grounds (1) and (2) as summarised above are both concerning the absence of an oral hearing being held. However, these allegations are plainly untrue as the Board had held oral hearings on 10 June 2020 and 17 June 2020 to assess the applicant’s appeal/petition. The applicant was present at both hearings and was thus given the chance to present her case to the Board in person.
20. In fact, due to the nature of the event that allegedly gave rise to the applicant’s non-refoulement claim, the Board had let the applicant recount the incident at her own pace before the Board asked her questions. The applicant’s case was rejected not only because of the Board’s finding on her credibility. Although the Board did not find it credible that the rape did occur as alleged, the applicant’s claim was assessed as if the applicant’s account were accepted as told.
21. However, the Board still found that the applicant’s claim should be dismissed based on its assessment of the applicant’s risk on all the applicable grounds under the USM, its findings that state protection would be available to the applicant and that internal relocation was a viable option to the applicant.
22. In ground (6), the applicant asserted that she being “a Indian Nepali”, has been targeted several times and has more evidence to submit to the authorities. This ground is plainly irrelevant. There was nothing in her case that she presented herself as an Indian Nepali who had been targeted for several times.
23. In ground (3), the applicant challenged that the Board took account of irrelevant considerations. However, she did not explain or elaborate what irrelevant considerations the Board had taken into account.
24. In ground (4), the applicant asserted that the Board gave no proper reasons for the decision. This accusation was without particulars. In fact, the Board did give full and detailed reasons as to why it found that the applicant’s claim for non-refoulement protection failed on each of the available grounds under the USM.
25. Regarding her complaint of the lack of legal assistance as summarised in ground (5) above, a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when the Director assessed her non-refoulement claim.
26. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
27. In ground (7) that was summarised above, the applicant complained that the adjudicator had not taken all COI material from the hearing bundle, had relied on source of news which was not officially recognized or was simply hearsay, and cases which were outdated, which resulted in groundless speculations.
28. However, the applicant did not state which pieces of COI materials that the Board had not taken into account. She also failed to identify which COI materials the Board relied on were not officially recognized or were hearsay. Likewise, she did not outline which cases the Board relied on were outdated.
29. Contrary to the applicant’s assertion, this court finds that the Board had referred to COI materials which were fully-referenced and clearly focused on the circumstances of the applicant in its assessment of the applicant’s claim, in particular when the Board was assessing the availability of state protection and the viability of internal relocation for the applicant in India.
30. In ground (8), the applicant stated that the adjudicator had not taken Paragraphs 92 to 95 into account, without even identifying whether she was referring to those paragraphs in the Board’s Decision or in another document. Even if the applicant was referring to those paragraphs in the Board’s Decision, she did not specify in what way the adjudicator had not taken those paragraphs into account.
31. As mentioned, the applicant cited a number of benchmark cases on non-refoulement claims in the document. However, the applicant did not explain or give any particulars as to how those benchmark cases were applicable to her own case.
32. 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”.
33. Thus, the general assertionsput forward by the applicant cannot help the applicant at all. This court finds that none of the assertions discussed above constitutes a valid ground to challenge the Board’s Decision.
34. 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).
35. 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 as aforesaid.
36. As can be seen from the Board’s Decision, the Board had analyzed the applicant’s evidence with due care and found that based on the numerous inconsistencies in her evidence given at different times and looking at the evidence as a whole, the Board did not find it credible that the rape did occur as alleged. The applicant had failed to prove her account on a balance of probabilities.
37. Nevertheless, taking into account the high standard of fairness required and the COI that showed crimes of similar nature were not uncommon in India, the Board could not say with confidence that no credence at all could be attached to the applicant’s evidence that she was once raped. Even assuming that the applicant had been raped, the Board did not believe that it was in the circumstances as described by the applicant. The Board did not give credence to her assertions that the rapist had fallen so much in love with her that he had continued to pursue her. The applicant had failed to prove facts which supported a present and continuing risk to her.
38. In the assessment of the applicant’s risks on the applicable grounds under the USM, the Board found that even accepting the applicant’s account as told, the unfortunate incident was a one-off incident that happened a few years ago. Saroj was not a state actor. There was no evidence of active or passive state acquiescence in the unlawful acts of Saroj upon the applicant.
39. The Board found on balance that with the passage of time, Saroj’s affection for her as well as the likelihood of his continuing to look for her would diminish. The fact that Saroj did not want the applicant to report the rape incident to the police showed that he was afraid of police investigation and was not as influential and powerful as the applicant claimed. Even if Saroj was as influential as claimed in the local municipal area in Delhi, there was no evidence that he had any influence in Darjeeling in West Bengal, where the parents of the applicant lived and where the applicant intended to stay in when she returned to India. None of the Convention reasons was applicable in the applicant’s case.
40. The Board assessed that the rape, if indeed had happened, was a traumatic event to the applicant. However, the future risk of ill-treatment from Saroj was low.
41. Moreover, the Board found from extensive COI that despite shortcomings and corruption of the Indian police, the Indian government as a whole and the state governments individually had made continuing efforts to amend the situation. The Board found that state protection was available and accessible to victims of rape. The Board did not find anything in the individual circumstances of the applicant that would make state protection unavailable or inaccessible to her.
42. Having regard to the conclusions reached, it was not strictly necessary for the Board to consider the viability of internal relocation for the applicant. Nevertheless, the Board found that internal relocation was clearly a viable option, even on the applicant’s account. COI indicated that there were support services and shelters available to women, and these services would be available should the applicant need help. The Board found that it would not be unduly harsh or unsafe for the applicant, being young, able to read and write Hindi and English with work experience both in India and Hong Kong, to relocate to other parts of the country.
43. Thus, the Board concluded that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM.
44. The finding of facts including the assessment of risk and COI was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
45. 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.
46. 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
47. For reasons aforesaid, the Leave Application is dismissed.
Dated the 4thday of February 2026
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( Irene LEE ) |
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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: |
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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)). |
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Sent/Handed to the applicant/the applicant’s solicitors
on: 4 February 2026
Applicant’s ref. no:
Nil |
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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: 4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16663/20/1/25/IN3148
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 976/19
(formerly RBCZ 10742/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] COI refers to country of origin information
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