TAMANG SARALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 212/2023

[2026] HKCFI 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 212 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of India who arrived in Hong Kong on 11 November 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 November 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 March 2021, she did not depart and instead overstayed, and on 3 May 2021 she surrendered to the Immigration Department and 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.

2.  The Applicant was born and raised in Village Gahiri, Pragati Gram, Po-Darjeeling, Ps-Sadar, Darjeeling, India. After leaving school she worked as a housemaid in her home village to make her living.

3.  In 2015 she started her own garment factory business with the help of a loan borrowed from a local money-lender with monthly interests payments which she initially managed to make from her business income.

4.  However, her business did not fare well, and by mid-2017 her factory was closed down, and when she defaulted with her loan repayment, her creditor started to send men to threaten her, and after one last warning from her creditor that he would kill her if next month she still failed to repay her loan, the Applicant became fearful for her life and fled from her home village for Darjeeling to hide in a friend’s place before moving on to Kolkata in August 2018 to look for jobs.

5.  In late 2019 she applied to work in Hong Kong as a foreign domestic helper, and accordingly on 9 November 2020 she departed India for Hong Kong to start her employment, but when her employment contract was prematurely terminated in March 2021, she was afraid to return to India and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 21 July 2021 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and followers upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, 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”) show 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 2.9 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 3 August 2021 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 19 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 February 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 wholly without any details as regard her alleged failed garment business in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from any creditor over repayment of any loan for her business that caused her to overstay in Hong Kong to seek protection that it did not consider her to be a credible witness and found that she had fabricated her evidence of having borrowed a loan from her creditor to start a garment business and for which her creditor had threatened her over her unpaid debts in order to concoct and advance a claim for non-refoulement protection in Hong Kong, and concluded that she is not at risk of any harm from anyone upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 14 February 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality 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 for her intended challenge of the Board’s decision.

11.  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.

12.  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.

13.  Furthermore, the fact is that it has also been correctly 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.

14.  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.

15.  It is also of note that the Applicant recently on 19 January 2026 in writing requested to withdraw her application as she now wants to return to India as soon as possible but without mentioning anything about her claimed risk in her home country.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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