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HCAL 110/2023
[2026] HKCFI 3139
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 110 of 2023
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BETWEEN
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Tamang Alka |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:
1. The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and the DOI as a putative interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 27 January 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 January 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 1 December 2021 in refusing the Applicant’s non-refoulement protection claim. She named both the TCAB and the DOI as proposed respondents and further named the TCAB as an interested party.
2. I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI instead as a putative interested party.
3. The Applicant requested for a hearing and she attended the same.
Background
4. The Applicant is a nation of India. She seeks non-refoulement protection on the basis that if she was returned, she would be harmed or killed by a loan shark from who she borrowed money and could not repay. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.
Discussion
5. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).
6. In her affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.
7. At the hearing, when asked if she had anything to add, she informed me that she had been injured in a traffic accident while she was in Hong Kong and was awaiting resolution of the claim arising therefrom. She asked for more time so that she could stay in Hong Kong and complete the claim. Unfortunately, this has nothing to do with the issues at hand in this application.
8. Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it and relevant Country of Origin Information [7-14], bore in mind the correct principles in assessment [15-37]. After thorough analysis and assessment, the TCAB came to find and conclude that none of the Applicant’s allegations was made out [38-43].
9. The TCAB then, within in mind the correct legal principles in respect of each of the four applicable grounds under the USM, further found and concluded that none was made out [44-79].
10. Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [80-88].
11. I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
12. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 12th day of June 2026
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(Cheung Ho Yat, Annson)
for Registrar, High Court
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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 the Applicant’s 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 to the Applicant on 12 June 2026
Tamang Alka
Applicant’s ref. no.:
Nil. |
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Sent 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 12 June 2026
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19435
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1984/21 (formerly RBCZ 383/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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