RAI PUNAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1135/2023

[2026] HKCFI 4728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1135 OF 2023

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.  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 10 July 2023, 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 5 July 2023 (“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/2023/HCAL001135_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 March 2023 and confirmed the same, which rejected her non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to India, she would be harmed or killed by her creditor from whom she borrowed 2.1 million Indian Rupee, as she could not repay the loan.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 13 August 2026.

6.  When this court asked the applicant to elaborate on the grounds of her intended judicial review which were stated in her affirmation dated 10 July 2023, she merely replied that she would rely on what was stated there and she had nothing more to say.

Grounds for judicial review

7.  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).

8.  The applicant did not advance any grounds for the intended judicial review in Form 86.

9.  In her supporting affirmation dated 10 July 2023, the applicant advanced 6 grounds under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

10.  As aforesaid, at the oral hearing, the applicant only said that she would rely on the grounds stated in her affirmation and did not elaborate on any of them.

Discussion

11.  First of all, all the grounds (except ground (6) which is not a ground at all) that were contained in the applicant’s affirmation were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

12.  She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

13.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

14.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

15.  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).

16.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

17.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 June 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

18.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The Board’s consideration of the applicant’s claims against all the applicable grounds under the USM were laid out in paragraphs 50 to 104 of the Board’s Decision, and it is not necessary to repeat the same here.

19.  The Board considered that the applicant’s problem was a purely private matter relating to the dispute with her creditor on outstanding loan repayment. The avoidance of loan repayment was clearly not one of the RC[1] reasons. Given the nature and extent of injuries the applicant encountered on the occasion where she claimed to have been slapped and threatened by the creditor, the Board did not accept that the ill-treatment suffered by the applicant attained a minimum level of severity. The applicant’s case did not involve state acquiescence.

20.  Moreover, the Board found that the applicant failed to report the case to the police or to seek assistance from the higher authorities in relation to her alleged life threat from the creditor. Her speculation on the police’s attitude and the attitude of the higher authorities was not supported by any concrete evidence.

21.  As can be seen from paragraphs 52 to 81 of the Board’s Decision, the Board had gone through very extensive country of origin information (“COI”) and found that the Indian government had already tried its best to combat corruption, arrest loan sharks, improve police professionalism and protect women. Thus, the Board found that reasonable state protection was available to the applicant, and there was no ground based on well-founded fear for refusing it.

22.  Thus, the Board concluded that the applicant was not at a real risk of any of the proscribed forms of harm under the USM.

23.  The Board did not consider the viability of internal relocation for the applicant. However, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

24.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

25.  The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit 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.

26.  For the sake of completeness, this court notes that the Board had erroneously stated in paragraph 49 of the Board’s Decision that the applicant’s story is internally consistent as to her monetary dispute with the creditor “and the family dispute with her husband”. This could not be correct, as the applicant was actually single (see paragraph 2 of the Board’s Decision) and she did not claim to face any harm arising from family dispute with her husband.

27.  Nevertheless, this error did not nullify the Board’s Decision, as the Board had indeed assessed the applicant’s claimed risk based on her fear of harm from her creditor throughout the Board’s Decision, which cannot be flawed.

28.  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.

29.  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

30.  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