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HCAL 97/2020
[2025] HKCFI 1821
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 97 OF 2020
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BETWEEN
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Limbu Sarmila |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 19 December 2019”.
2. 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 9 January 2020, 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 20 December 2019.
2. There was no such decision of the Board dated 20 December 2019. The Board’s decision was in fact dated 19 December 2019 (“the Board’s Decision”). It is clear that the applicant made a mistake about the date of the Board’s Decision. Hence, this court will treat the Leave Application as being made in respect of 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/2020/HCAL000097_2020_files/the_Board's_Decision.pdf
3. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 January 2019 and confirmed the Director’s said decision, which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).
Amendments
4. In Form 86, the name of the putative respondent was misspelt and the applicant did not name any putative interested party, when the Director should be the putative interested party. As aforesaid, the applicant also stated a wrong date for the Board’s Decision.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party and the decision in respect of which relief is sought is amended to the Board’s Decision.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because she feared that her former mother-in-law and her former mother-in-law’s family would harm her if she were to return to Nepal, as her former mother-in-law opposed her Christianity.
Oral hearing
8. The applicant requested for an oral hearing and her case was heard on 27 March 2025.
9. At the hearing, the applicant claimed that she did not know what judicial review was and she just made the application as told by someone so that she could stay in Hong Kong. Nevertheless, she wanted to proceed with the Leave Application.
10. She also told this court that she is married to a Hong Kong resident and has applied for dependency status in August 2024. Meanwhile, she is still waiting for the result of that application.
11. However, when this court asked her about the grounds for her intended judicial review, she replied that she had no idea.
Grounds for judicial review
12. 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).
13. In Form 86 and her supporting affirmation dated 9 January 2020, the applicant stated that the Board’s Decision “is totally unreasonable and not supported”, and she would request for a review of it. The applicant’s allegations that the Board’s Decision was unreasonable and unsupported are only bare assertions without any substance. Thus, the applicant did not advance any valid grounds for the intended judicial review at all.
Discussion
14. 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).
15. Thus, this court will scrutinize the Board’s Decision, even though the applicant has not advanced any valid grounds for the intended judicial review.
16. In assessing the appeal by the applicant, the Board held oral hearings on 20 and 25 November 2019, and the Board examined all the documentary evidence. After due consideration of the law and the evidence as presented by the applicant, the Board noted that she made no mention of any fear of her former mother-in-law or her first husband’s family, and that she had no contact with them since she came to Hong Kong. The Board was not satisfied that even if the applicant had been a practising Christian after her conversion from Hinduism, it would not warrant non-refoulement protection. Likewise, even if she might have estranged from her own family in Nepal, it would not be a ground for granting her non-refoulement protection.
17. In assessing the viability for the applicant’s internal relocation, the Board concluded that as a young and relatively sophisticated woman in apparent good health who had lived in Hong Kong for a number of years, she could reasonably live and find employment in other parts of Nepal, such as Kathmandu, where she used to live.
18. The Board also considered what the applicant further alleged at the hearings, namely her second husband’s family also disapproved of her. Yet, they were not in Nepal but living in Hong Kong. The Board considered that they would not pose any threat to her when she returned to Nepal.
19. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.
20. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board. It is therefore groundless for the applicant to allege that the Board’s Decision was unreasonable or was unsupported by evidence, as the Board did examine her claims carefully and make its decision after considering all the evidence.
21. 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 error 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.
22. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of May 2025
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( Thomas Chan )
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 his 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/Handed to the applicant/the applicant’s solicitors on: 12/5/2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 12/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15374/19/1/247/N595
Director of Immigration
Putative interested party’s ref. no.: QA T/C 5087/18 (Formerly RBCZ 10811/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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