Limbu Rukmeni v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 277/2025

[2025] HKCFI 2739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 277 OF 2025

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 14 May 2025.

The applicant

3.The applicant, aged 35, is a national of India. She arrived in Hong Kong in 19 February 2023 as a domestic helper but was arrested on 27 June 2023 of theft and using an identity card relating to another person. She was sentenced to 22.5 months’ imprisonment on 15 January 2024. In due course, the applicant lodged a non-refoulement claim.

4.The applicant’s claim was based on her fear of being harmed or killed by the Kirat community in her locality and her father because of her religious conversion from Kirat to Christianity.

5.According to the applicant, she was threatened from the Kirat community after news was spread about the applicant’s conversion to Christianity and her father was pressured to disown her or step down and leave the community. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 19 August 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: the claimed level risk of harm was assessed to be low as there was a low intention from the Kirat community or her father to harm or kill her, and that the applicant failed to provide concrete and reliable evidence that the community could track her down everywhere in India [13-15]; state protection was available and the applicant would be afforded reasonable protection by the authorities [16-21]; and internal relocation alternatives were available [22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 28 November 2024, the Board conducted an oral hearing for her appeal, during which the applicant confirmed the truth and correctness of all the evidence contained in the hearing bundle and did not need further time and was ready for the hearing [9].

9.Having considered the evidence, the Board found that the applicant had no proof as to her threats received from the Kirat community or her father [15] and there was no, or no reliable evidence under all applicable grounds [134-137]. In any event, the Board was satisfied that state protection was available [102] and that internal relocation was not unduly harsh [132]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 24 January 2025 for leave to apply for judicial review of the Board’s Decision. She did not put forth any ground in support of her application in Form 86.

11.In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision but again, no valid grounds were put forward.

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. Before me, the applicant said that the Board did not accept her evidence and asked this Court to review the Board’s Decision.

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.In my view, the Board was entitled to make its assessment as to what evidence was acceptable. The Court will not interfere with the Board’s discretion without good reason.

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

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

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant appeared in person.