LIMBU (YENGDEN) SONA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3168/2019

[2025] HKCFI 3491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3168 of 2019

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 present in open court;

Leave to apply for Judicial Review of the Torture Claims Appeal Board’s
2^nd Decision be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 October 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision) dismissing her appeal against the Director’s Notice of Further Decision dated 4 September 2017 (“the Director’s 2^nd Decision”) of her claim on BOR 2 risk.

2.  The Director had also dismissed her claim on Torture risk, BOR 3 risk and Persecution risk in the Director’s Notice of Decision dated 30 April 2015 (“the Director’s 1^st Decision”). She appealed to the Board, which dismissed her appeal by Decision dated 28 October 2015 (“the Board’s 1^st Decision”). The applicant did not apply for judicial review of this Decision. However, the facts in support of her BOR 2 risk are the same facts for the other applicable risks, I shall therefore take into consideration of the Board’s 1^st Decision as well.

3.  The applicant requested an oral hearing. She appeared before the Court on 20 June 2025.

The applicant

4.  The applicant, aged 39, is a national of Nepal. She is an illegal immigrant and was arrested by police on 2 January 2011. She lodged a non-refoulement claim with the Director of Immigration on the basis that, if refouled, she will be harmed by her father because she refused to give gold jewelry, which she inherited from her deceased mother, to him. Her father used to abuse her by hitting her on her head and back since she was young. Details of her story are set out in paragraphs 7-9 of the Board’s 1^st Decision. See hyperlink
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003168_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk because it was unsubstantiated. Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks. By way of the Director’s 2^nd Decision, the Director dismissed her claim on BOR 2 risk for the same reasons.

The Board’s Decision

7.  The applicant appealed the Director’s 1^st Decision to the Board. The Board decided not to hold an oral hearing and assessed her appeal on the papers.

8.  Having considered the applicant’s evidence, the Board also found that her claim was unsubstantiated [14-28] and dismissed her appeal.

9.  The applicant further appealed the Director’s 2^nd Decision on BOR 2 risk to the Board. On 21 June 2019, the Board held an oral hearing for her appeal because she had raised additional facts in her appeal. In support of her appeal, she said she had borrowed a loan from someone in Nepal and she was unable to repay the debt.

10.  Upon the Board’s enquiry on this issue, the applicant said that she did not raise this fact previously with the Director and the Board because she was nervous. The money borrowed was for her to come to Hong Kong. The Board did not accept her explanation and rejected her evidence. [21-26]

11.  For the above reasons, the Board, by the Board’s 2^nd Decision, dismissed her appeal.

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

12.  The applicant has filed Form 86 dated 25 October 2019

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

14.  In Form 86 and her affirmation, the applicant has raised the grounds below in support of her application:

(1)  the Board had unlawfully fettered its discretion by refusing her appeal;

(2)  the adjudicator had acted procedurally unfair;

(3)  the Board’s 2^nd Decision is unreasonable or irrational in public law sense or as a result of procedural error or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she does not want to go back to Nepal.

17.  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.”

18.  Those grounds under paragraph 14 are general assertions or her opinions without any evidence in support. They are not valid to challenge the Board’s Decisions[1].

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd 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