Suman and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1104/2025

[2025] HKCFI 5161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1104 of 2025

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant is the wife of the 2^nd applicant; they are respectively aged 22 and 23.

2.The applicants jointly apply for leave to apply for judicial review of the Notice of Decision dated 5 February 2025 (“the Director’s Decision”) and Decision dated 30 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).

3.The Court of Appeal held that the Board’s Decision superseded the Director’s Decision.  The application for leave for judicial review the Director’s Decision fails in limine and is dismissed,[1]

4.The applicants did not request a hearing.

5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

6.The applicants are nationals of India. They are illegal immigrants as they came to Hong Kong on 7 March 2024 as visitors. They overstayed since 22 March 2024 and surrendered to the Immigration Department where they lodged a non-refoulement on the basis that, if refouled, they will be harmed or killed by their parents because of their love marriage within the same clan.  Such marriage is viewed as incestuous in India. Their parents had threatened to kill them.  The husband further said that some members of Hindu organizations threatened to kill them.

7.Details of the facts as the applicants alleged are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001104_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

8.The Director considered the applicants’ claims 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”).

9.By way of Notice of Decision dated 5 February 2025 (“the Director’s Decision”), the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims because their claims were unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 7 April 2025, the Board conducted an oral hearing for their appeals.  Each applicant had given oral evidence and answered the Board’s questions.

11.Having considered the evidence, the Board made the findings below.

(1)   The applicants failed to provide a consistent account of what happened to them before they left India, either internally within their own accounts or between each other’s account of the same circumstances and incidents.  [64] The Board set out the evidence in support of the above findings.  [66]-72]

(2)   The Board therefore did not find the applicant to be credible witnesses.  [73]

(3)   The Board was not satisfied that they are at risk of persecution or serious harm from their families, or society in general if they return to India as a result of their marriage.  [74]

12.It therefore dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 12 May 2025 for leave to apply for judicial review of the Board’s Decision. In their affirmation, the applicants have, insofar as the Board’s Decision is concerned, raised the grounds below to challenge the Board’s Decision.

(1)   They believe the Board’s Decision is wrong. It had not taken their unique situation fairly or carefully.

(2)   The Board had ignored the fact that many people many innocent people had been killed if they refused to join the other political party while the authority failed to provide any protection and the courts failed to provide justice.

(3)   The Board’s Decision was biased, without considering all information and evidence available.

(4)   The Board was wrong for not considering BOR 2 risk.

(5)   The Board had not considered the COWeconditions and COWereseach before coming to its decisions.

(6)   The Board’s Decision is irrational in that it did not consider the above materials, cheer-picking the country of origin information.

(7)   The Board did not consider the consistent pattern of gross, flagrant or mass violations of human rights in India.

DISCUSSION

14.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.Those reasons in paragraph 13 are the applicants’ bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.[2]

17.This Court has identified 2 errors in the Board’s Decision, one in paragraph 25, which said that the female applicant was born in February 2023, the other in paragraph 38, saying that the male applicant was born in January 2022. The proper dates for the female and the male applicants should be February 2003 and January 2002 respectively. But this typo does not affect the validity of the Board’s Decision.

18.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

19.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

Dated the 12^th day of November 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