Moktan Devinda v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2096/2019 on BabelCite. This High Court CFI judgment was delivered on 4 June 2025.
1. This is an application by Madam Moktan Devinda (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 27 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 12 cases
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HCAL 2096/2019 [2025] HKCFI 2371 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2096 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observation for the Applicant: Introduction 1.This is an application by Madam Moktan Devinda (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 27 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant and the Claim 2.The Applicant is a Nepali. She was born on 26 November 1978 in Charikot, Purba Zone, Nepal. She received about 2 years of education and had about 21 years of work experience. 3.The Applicant claimed that her husband in Nepal (“Husband”) and villagers from her home village would harm or kill her because they thought that she was a witch. 4.According to the Applicant, she started living with Husband when she was about 19 years old. They considered themselves a married couple even though they did not formalise their marriage. After getting married, she told him about the dreams she had. Later, the unfortunate events in the dreams materialised. She also prayed to the deities in the Nepalese culture. 5.Husband accused her of being a witch and notified the local villagers. Husband attacked her on two occasions, injuring her and causing her scars. The villagers harassed the Applicant on multiple occasions. They attacked her, threw stones at her and arrested her. The Applicant’s shop in Nepal had to be sold because it was vandalised repeatedly. 6.The Applicant sought help from the local police and the Congress Party but they did not take her complaint seriously. She tried fleeing to a neighbouring village in Pokhara but the husband of her host tried to rape her, so she had to go back to her home village. She also moved to her sister’s village and stayed there for about 1 year. However, she was again accused of being a witch and the villagers mistreated her. 7.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):
8.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 9.On 23 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and Board’s Decision. She also put her non-refoulement claim form (“NCF”) and her record of screening interview (“Interview Record”) as subject matters for her application. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents. 10.The Applicant attended the court hearing of 15 April 2025 (“Court Hearing”) and confirmed that only the Board’s Decision was the subject decision for her intended judicial review. Legal principles applicable to judicial review 11.In a judicial review, the court does not step into the shoes of the decision makers. 12.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
13.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 reasonably arguable claim which enjoyed realistic prospects of success. Discussion 14.In the Form 86, the Applicant did not put forward any ground for her intended judicial review. 15.In the Supporting Affirmation, the Applicant exhibited the DOI Decision, the Board’s Decision, the NCF and the Interview Record. She put forward the following grounds in support of her intended judicial review application:
16.In a letter dated 16 October 2024 (“Letter”), the Applicant reiterated the grounds related to the lack of language and legal assistance. She also claimed that the lack of language assistance prevented her from fully elaborating on her grounds for judicial review. In the Letter, the Applicant said that she planned to apply for legal aid. However, in the court file, there was no record of the court being notified of any legal aid application by the Applicant. At the Court Hearing, the Applicant said that she could not recall whether she had applied for legal aid. 17.The NCF and the Interview Record are not “judgment, order, decision or other proceeding” susceptible to judicial review. It was misconceived for the Applicant to seek judicial review of the NCF and the Interview Record. I accordingly dismiss the Applicant’s application for leave for judicial review of the NCF and the Interview Record. 18.In §§14 and 17 of the Supporting Affirmation, the Applicant stated that: “I am appealing against the decisions of the Director of Immigration as well as the Torture Claims Appeal Board” and “I would like to seek Judicial Review of the decision(s) made by the TCAB / Non-refopulement Claims Petition Office and the Director of Immigration.”. 19.The Applicant had appealed against the DOI Decision to the Board and the Board had heard the Appeal as a rehearing. The Court of Appeal had pointed out in Re: Ali Usman [2018] HKCA 955 at §21 that: “this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision, and the focus should be on the decision of the Board.” The same applies to this case. I also dismiss the Applicant’s application for leave for judicial review of the DOI Decision. Complaint relating to COI 20.The Board dismissed the Appeal for being incredible. The Board noted that the Applicant added new events in her testimony to the Board while failing to recall crucial events identified in her claim to the Director. The Board held that the Applicant was incredible and did not accept that she had ever been accused of being a witch by anyone or that she faced any risk upon her return to Nepal. The COI material placed before the Board had no impact on the Board’s Decision. 21.In any event, the Applicant provided no particulars or specifics in the Form 86 or the Supporting Affirmation for this complaint. At the Court Hearing, the Applicant was still unable to provide any particulars or specifics for her such compliant. Without particulars, such complaint is not reasonably arguable for her intended judicial review. Lack of legal assistance 22.The Court of Appeal had pointed out in Re Zunariyah [2018] HKCA 14 that:
23.The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17) 24.In §§9-10 of the Supporting Affirmation, the Applicant confirmed that when her claims were screened by the Immigration Department, her case was referred to the Duty Lawyer Service (“DLS”) whereby she received publicly funded legal assistance. She submitted the NCF through her legal representative. 25.In §13 of the Supporting Affirmation, the Applicant admitted that: “I was advised by my duty lawyer that there are no merits for the appeal, and hence the duty lawyer no longer represented me.” 26.It can be seen that legal assistance had been provided by the DLS to the Applicant to process the Claim before the Director. The DLS did not provide further legal assistance to the Applicant for the Appeal on grounds of merits. There was no suggestion that the DLS had not properly applied the merit test in refusing further legal assistance to the Applicant. 27.The Applicant’s complaint on lack of legal assistance in the Appeal is not reasonably arguable in her intended judicial review of the Board’s Decision. Lack of language assistance 28.The Applicant complained that the Board’s Decision was issued in English and not translated into her mother language for her. 29.In §9 of the Supporting Affirmation, the Applicant confirmed that interpreter had been arranged for her in processing the Claim before the Director. In §21 of the Supporting Affirmation, the Applicant also confirmed that interpreter had been arranged for her for the Appeal hearing before the Board to help her with her language incapability. 30.In §21 of the Supporting Affirmation, the Applicant further stated that: “I find it very insensitive and possibly unlawful that the Adjudicator would allow the Determination [i.e. the Board’s Decision] to be written in a language that I do not understand and did not provide me with professional help (certified interpreter/translator) in order to help me understand the reasons for rejecting my claim.” 31.It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. Both Chinese and English are official languages in Hong Kong. It cannot possibly be unlawful for the Board to issue the Board’s Decision in English. There is no legal basis for the Applicant to expect the Board to issue the Board’s Decision in her mother language. 32.It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. She has to live with or cope with her language disability. She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community. 33.I note that the Applicant filled in the Form 86 and prepared the Supporting Affirmation and the Letter, all in English, without assistance of an interpreter. This showed that the Applicant could understand reasonable English or that she had access to language assistance. This was confirmed by the Applicant in the Letter when she stated that: “I seek help from a friend who is just familiar with English”. 34.Furthermore, the hearing bundle for the Appeal hearing before the Board should be basically made up of the NCF, the Interview Record, the DOI Decision, her notice of appeal and the COI materials referred to in the DOI Decision. 35.The Applicant should know what was contained in the NCF and notice of appeal which were documents prepared and submitted by her. She knew what was contained in the Interview Record which she attended with the assistance of an interpreter. The Interview Record should have been read back to her in her own language before she signed the same. The DOI Decision was sent to her and she had to understand the DOI Decision before she appealed to the Board. The COI were materials considered by the Director and referred to in the DOI Decision. 36.In §26 of the Supporting Affirmation, the Applicant stated that: “The Fact that the determination of the Torture Claims Appeal Board has never been read or translated to me should be considered a lack of assistance. Without knowing the reason behind the rejection of my claim, I am deprived of the opportunity to make a full application for leave to apply for judicial review”. Such complaint was misconceived. 37.The Applicant has to understand the Board’s Decision before she would decide to take out this application to seek judicial review of the Board’s Decision as she has to show to the court in this application how the Board’s Decision was erred in law, procedurally unfair or irrational. Without understanding the Board’s Decision, the Applicant has no basis to take out this application. Not understanding the Board’s Decision cannot be a ground for judicial review of the Board’s Decision. 38.The Applicant’s complaint on lack of language assistance in the Appeal is not reasonably arguable in her intended judicial review of the Board’s Decision. Finding on credibility 39.The Applicant complained that the Board did not address issues properly and had made baseless assumptions towards her case. (§§22 and 29 of the Supporting Affirmation) The Applicant provided no particulars or specifics for her such complaints. 40.Such complaints were also not supported by evidence. In §§27-66 of the Board’s Decision, the Board discussed the Applicant’s evidence in some details and based on the analysis of her evidence, assessed her credibility. Given the number and nature of the concerns raised, the Board found that the Applicant was not a witness of truth and the Board was not satisfied that the Applicant had told the Board the truth in relation to critical elements of her claims. 41.As for the alleged failure by the Board to appreciate her failing memory, the Board had considered this issue in §§42-44 of the Board’s Decision. The Board did not accept that the Applicant’s memory problem was so sever or to a level that adequate explained the differences in her evidence given at different stages of her non-redfoulement claim proceedings. The Board considered that the differences in her evidence reflected poorly on the Applicant’s credibility and the reliability of her evidence. 42.The Applicant admitted at the Court Hearing that she did not have any medical evidence to substantiate her contention on her memory problem. 43.As pointed out in the Nupur Mst case (supra), assessment of evidence was primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. 44.In disputing the Board's assessment on evidence, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case. The Board’s findings and the court’s decision 45.On the evidence before it, the Board did not accept that the Applicant was accused of being a witch by Husband and/or her community. The Board did not accept that the Applicant was harassed, threatened, assaulted and tortured by Husband, or people in her community or Nepal society. On the evidence before it, the Board did not accept that the Applicant feared returning to Nepal for the reason she had claimed or for any other reason. The Board did not accept that Husband, or anyone in her village community, or anyone in Nepal, would harm her for any of the reasons she had claimed, or for any other reason, if she returned to Nepal. 46.In light of the aforesaid findings, the Board considered that the Applicant would not be at risk of any harm if she returned to Nepal and there was not a real risk that the Applicant would face any of the proscribed forms of harm should she return to Nepal. 47.The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 48.At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. She said that she needed medical treatment for her health problems and wanted to stay in Hong Kong for another year. This is no ground for seeking non-refoulement protection nor ground for seeking judicial review of the Board’s Decision. 49.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 50.In §§67-102 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that there were no substantial grounds for believing that the Applicant would be in danger of being subject to the torture risk or the BOR 3 risk if she returned to Nepal. The Board also found that there was not a real risk that the Applicant would arbitrarily be deprived of life, have the death penalty imposed on her or otherwise be deprived of her rights under BOR 2. The Board found that the Applicant did not have a well-founded fear of persecution on any Refugees Convention basis. 51.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact which were exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success. Conclusion 52.In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 4th day of June 2025.
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
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Cases cited in this judgment