Sharma Bahun Rupa v. Torture Claims Appeal Board

HCAL 29/2020

[2025] HKCFI 3811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 29 OF 2020

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

Following:

	consideration of the documents only;    or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Hon S T Poon J:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of India who arrived in Hong Kong on 15 May 2010 as a visitor with permission to remain as such up to 29 May 2010 when she did not depart and instead overstayed, and more than 6 months later on 9 November 2010 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by some local supporters of the political party Indian National Congress Party (“INC”) as she supported their rival Sikkim Democratic Front (“SDF”).  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Sikkim Jorthan, India.  Following her mother’s footstep, the Applicant supported SDF since she was young but did not hold any position.

3.In mid-2009 the Applicant was twice invited by her friend, Sunita, who was also a SDF supporter, to participate with her in SDF demonstrations.  While attending their 2^nd demonstration together, a fight broke out between the SDF and INC supporters and Sunita was injured but the Applicant was able to escape unharmed.  Some INC supported took photos of the Applicant and Sunita and threatened them that they would be recognized by other INC supporters.  After that, the Applicant hid and stayed at home and kept a low profile and did not further participate in any political activities.

4.In mid 2010, the Applicant was invited by her cousin to visit Hong Kong, and she did so and entered Hong Kong as a visitor on 15 May 2010 where she subsequently overstayed and raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 24 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that she would be in danger of being harmed or killed by the INC supporters upon her return to India due to the low intensity and frequency of past ill-treatment from them, that she has never suffered any harm by anyone, that there is no evidence of any real intention of the INC supporters to seriously harm or kill her or to specifically target her for harm, that in any event it was a private and personal dispute between her and the INC supporters only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for anyone to locate her.

7.On 6 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing with the assistance of an interpreter on 9 December 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 18 December 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from the INC supporters that caused her to leave her country to come to Hong Kong to seek protection, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant from any harm from the INC supporters that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 3 January 2020, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Adjudicator failed to consider the Applicant’s claim under torture risk in the assessment of her non-refoulement claim;  

(2)  That the Adjudicator was biased against the Applicant and made her determination based on many assumptions without allowing her any opportunity to explain or elaborate her case;

(3)  That the Board’s decision has never been read or translated to her that she is deprived of the opportunity to make a full application for leave to apply for judicial review of the Board’s decision which is also procedurally unfair to the Applicant;

(4)  That the Adjudicator failed to exercise her case management power wrongly.

10.As for her complaint under Ground (1), the Applicant did not file any Notice of Appeal against the Director’s decision of the Applicant’s torture claim dated 12 July 2013 nor did she make such indication in her Notice of Appeal filed on 6 November 2018 with the Board.  In fact, the Applicant confirmed to the Board that she did not appeal that decision and instead was advised by her legal representative to make a new application under the Unified Screening Mechanism.  Accordingly, the Board properly considered her claims under the remaining applicable grounds other than torture risk.  In the absence of any particulars or elaboration from the Applicant in support of her such challenge, I do not find this ground reasonably arguable.

11.As for her complaint under Grounds (2) and (3) that the Board was biased against her without giving her any opportunity to explain or elaborate her claim, the Applicant is again clearly factually incorrect as she did attend an oral hearing on 9 December 2019 before the Board for her appeal during which she was clearly able to make full representation of her claim to the Board with the assistance of an interpreter and without any difficulty (see [10], [35] – [54] of the decision), and in the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I do not find this ground reasonably arguable for her intended challenge either.

12.As for her complaints under the remaining Ground (4), it is just a vague and bare assertion of the Applicant without any relevant or necessary details or particulars or elaboration as to how it apply to her case or how the Board or the Adjudicator erred in the decision, or in what way was the Adjudicator biased against her or exercise the case management power wrongfully.  As such and in the absence of any proper or relevant elaboration for these grounds, I do not find any of them reasonably arguable for her intended challenge either.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 62 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact is that that it has also been correctly established by the Director in his decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

16.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 29^th day of August 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

Form CALL-1