GURUNG PUSPA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2387/2023

[2026] HKCFI 3669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2387 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who last arrived in Hong Kong on 22 March 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but on 7 June 2023 she was arrested by police for undertaking unauthorized employment in some restaurant, and for which she was convicted and sentenced to prison for 8 weeks. Upon her subsequent discharge from prison and she was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Shillong, Meghalaya, India where she never received any formal schooling and was supported by her parents.

3.  In 2012 she and her father borrowed a loan from some local money-lender for her mother’s medical expenses as well as for her own expenses for applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in 2013 when she first arrived in Hong Kong to start her employment.

4.  Somehow in 2013 she and her father failed to repay the loan to the money‑lender who then sent men to threaten her father, and after being beaten by those men on one occasion her father in 2014 moved away to hide from the creditor who then turned to the Applicant by making threatening phone calls and messages to her in Hong Kong that she subsequently cancelled her phone number to avoid further threats from her creditor.     

5.  However, in June 2023 she was arrested by police for undertaking unauthorized employment and for which she was convicted and sentenced to prison for 8 weeks, and upon her discharge from prison and she was referred to the Immigration for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 30 August 2023 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 28 September 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from her creditor is likely to materialize upon her return to India due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.3 billion people spread across a vast territory of more than 3 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Mumbai where it would be difficult if not impossible for her creditor to locate her.

8.  On 11 October 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 5 December 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies, discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from some money-lender over some outstanding loan borrowed by her and her father that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until her discharge from prison and was referred to the Immigration Department for deportation that only then did she raise her claim that it is not accepted that she and her father had borrowed any loan from any money-lender or that they had been threatened over any debts that it concluded that she has failed to establish that she will face any real risk of being harmed by any creditor upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 29 December 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in its failure to consider the concept of extended state acquiescence in the consideration of her claim;

(2)  Procedural impropriety/irrationality in its failure to make sufficient enquiry into the COI and/or failure to appropriately examine purportedly objective COI materials in its consideration of her claim;

(3)  Error/misdirection in law in its failure to consider psychological harm viz the issue of multiple death threats against the Applicant;

(4)  Error/misdirection in law in its incorrect examination of the facts in relation to legal principles viz a purported requirement of the Applicant to exhaust all avenues when reporting public misconduct and/or corruption;

(5)  Irrationality in relying on insufficient basis to conclude that the Applicant has not made out her claim for non-refoulement protection;

(6)  Procedural impropriety/irrationality in failing to provide adequate reasons for assessment of the Applicant’s claim;

(7)  Procedural impropriety/irrationality and/or illegality in its abdication of duty to properly examine the Applicant’s case.         

11.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were extended state acquiescence or reporting on public misconduct or corruption to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issue in her home country has been resolved that she now wants to return to India as soon as possible.

17.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that no more issue for her to return to her home country, I accordingly dismiss her leave application.

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