BARAL GOMA KUMARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3410/2019

[2025] HKCFI 4098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3410 OF 2019

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” and 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 18 November 2019, 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 25 October 2019 (“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/2019/HCAL003410_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 27 June 2019, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named both the Board and Immigration Department as the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

4.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Nepal, her brother would harm or kill her, as she married a foreigner without the permission of her family.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application, and her case was heard on 10 July 2025.

8.  However, when this court invited her to state the grounds for her intended judicial review, she merely said that she wanted to stay in Hong Kong with her son who was born in Hong Kong and had obtained residency in Hong Kong through his father. She had lost contact with her husband and hence she wanted to stay in Hong Kong with her son.

Grounds for judicial review

9.  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).

10.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 18 November 2019. She merely stated in the affirmation that her life would be at risk and it was not safe to return to her country Nepal as she would be killed.

11.  As aforesaid, she did not advance any ground for the Leave Application at the oral hearing either. She only mentioned that she wanted to stay in Hong Kong with her son.

Discussion

12.  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).

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

14.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 16 September 2019 and the applicant was present. Thus, the applicant did have a chance to present her case to the Board in person.

15.  The Board found that the only time the applicant was attacked by her brother was when she told her family that she wanted to marry her husband, who was a Chinese. The other time she was assaulted was by her father when she refused to accept the marriage arranged by her brother. She only suffered minor injuries as a result. Apart from that, she had never been subjected to any ill-treatment at all.

16.  The brother only called her once after her marriage and threatened to go to Kathmandu to kill her and her husband if she did not leave her husband and return home immediately. Her brother took no further action after the call until she and her husband left Kathmandu two months later. This clearly indicated that her brother’s threat was an empty threat, uttered only in a spur of moment after he learnt that the applicant was married without the family’s permission.

17.  After considering all the evidence, the Board found that there was no basis for the applicant’s fear. In any event, the treatment the applicant received did not fall within the meaning of “torture” under Section 37U(1) of the Immigration Ordinance.

18.  The Board noted from country of origin information (“COI”) for Nepal that endemic corruption resulted in weak rule of law, which in turn rendered corruption a matter both of necessity and convenience for parties, civil servants, citizens and businesses. On the other hand, COI also suggested that the Nepalese government was stepping up measures to improve the effectiveness of the police force. The applicant in fact had never reported the matter to police. Therefore, the applicant’s assertion that the police would not help or protect her was a bare assertion without any evidence.

19.  The applicant’s fear of ill-treatment did not fall within the definition of persecution either.

20.  The Board also noted the applicant’s case that she could not relocate because her brother would locate her wherever she stayed in Nepal. However, the Board found no evidence that either her father or her brother was powerful, influential or resourceful enough to locate the applicant had she moved and stayed in places other than her home town. Internal relocation was permissible under the law of Nepal.

21.  The Board found that there should be no difficulty for the applicant, being a healthy and young person who had received formal education up to class 8 in a secondary school, to gain a living had she been relocated to other cities or towns away from her home town, despite her little work experience.

22.  The Board was also minded to consider the difficulty of the applicant if she were to return to Nepal with her child. The Board found that there were NGOs in Nepal whose mission was to render help to single mothers. Furthermore, the government was going to pass a bill concerning Nepal’s Citizenship Act, which would provide more protection to the rights of a single mother and her children. All these would certainly alleviate the difficulty of a single mother in Nepal.

23.  Thus, the Board had indeed fully assessed the danger of the applicant and found her claim for non-refoulement protection failed on all the applicable grounds under the USM.

24.  The assessment of evidence, COI materials and risk of harm was primarily within the realm 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.

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 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.

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.

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