THAPA SAPNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 736/2025

[2025] HKCFI 3130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 736 of 2025

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 March 2025 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not request an oral hearing. I shall deal with her application on the papers.

The applicant

3.  The applicant is a national of Indian. On 9 April 2021, she arrived in Hong Kong as a domestic helper but when her contract was prematurely terminated, she overstayed since 16 September 2024. The applicant was arrested on 28 August 2024 for taking up unlawful employment and was later sentenced to a 2-month imprisonment. In due course, she lodged her non-refoulement claim.

4.  The applicant’s claim was based on her fear of being harmed or killed by her uncle and aunt due to her family dispute.

5.  According to the applicant, her uncle and aunt as her adopted parents forced her to marry a man who was always influenced by drugs. Besides she was always starved and beaten by her adopted parents. So she left her home. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 26 November 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that this was simply a family dispute of a private nature and the level of risk of being harmed or killed is assessed to be low; that the applicant did not take any possible opportunity to stay away from the alleged ill-treatment by trying to starve her to death [13-27]; that state protection was available [28-32]; and that internal relocation alternatives were available and reasonable [33-37].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 February 2025, the Board conducted an oral hearing for her appeal, during which the Board took evidence in relation to the applicant’s claims and adopted what she had said in her Non-refoulement Claim Form and various written representations [27].

9.  Having considered the evidence, the Board did not accept that those people would harm the applicant no matter where she stayed in India and it did not believe her story [61]; that on the totality of evidence, it did not find any foreseeable, real, personal; and present risk of being torture or under the applicable grounds [109-110, 115-116, 122-123, 131-132]. In any event, the Board found that state protection was available for the applicant [67-107] and internal relocation was also available if necessary [108-109]. In conclusion, the Board held that the applicant’s claim failed under all applicable risks. It therefore dismissed her appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000736_2025_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 24 March 2025 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant did not raise any specific ground to challenge the Board’s Decision in her affidavit in support of the application.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I 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