RANA KRITI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2847/2019

[2025] HKCFI 1899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2847 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave to the applicant to withdraw the Leave Application.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 27 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 September 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 25 July 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  In her Form 86, the applicant named the Board as well as the Immigration Department as the proposed respondents and interested parties. As the Board should have been the proposed respondent and the Director the interested party, the Form 86 will be amended accordingly.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is a Nepalese national. She arrived in Hong Kong on 3 October 2015 and was permitted to remain as a visitor until 5 October 2015. She did not depart, and overstayed. On 15 October 2015, she surrendered herself to the Immigration Department. On 10 February 2017, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by gangsters who had threatened and assaulted her after the applicant tried to make a report to the police about their running off without payment after having eaten at her paternal uncle’s restaurant. She also claimed that she feared the creditor who loaned her the money for her trip to Hong Kong, and who had threatened to sell her to India.

5.  The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.

6.  The Board found that some aspects of her narratives were illogical or unreasonable, and therefor raised these concerns with the applicant at the Board hearing. However, she was unable to provide a satisfactory explanation. The Board thus found that she was not a credible witness. In any event, the Board also found that the applicant had not suffered any severe physical or mental pain or suffering, and found that state protection and internal relocation would be viable. Therefore, the Board concluded that there was no real risk of harm, and dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation, she stated that the Board disregarded her dangerous situation. However, she did not provide any particulars.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

11.  On 22 January 2025, the applicant filed an affirmation to apply to “close” her case, stating that she wished to close her case, because she has married to a Hong Kong identity card holder, i.e. a Hong Kong resident, and is applying for a dependent visa. She needs to return to her country to renew her passport.

12.  In view of the discussion above, I think it is appropriate, as a matter of practice, to dismiss her Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at§9).

Orders

13.  Leave to the applicant to withdraw the Leave Application.

14.  The Leave Application be 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