Kour Prabhjot v. Torture Claims Appeal Board

HCAL 2363/2024

[2026] HKCFI 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2363 OF 2024

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 4 December 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 July 2024 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002363_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 December 2023 and confirmed the same.

Late application

3.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

4.However, the applicant filed her Form 86 on 4 December 2024, which was more than 4 months after the Board’s Decision (made on 10 July 2024).  The applicant was hence late for more than 1 month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

6.The applicant did not make any application for extension of time to file the Leave Application and provided no reason for the delay when making the application.  The delay of more than 1 month is not insignificant.  More importantly, as discussed below, there is no merits of the intended judicial review at all. 

7.Thus, this court is not prepared to extend the time for the applicant to file the Leave Application even if an application for extension of time was made.  The Leave Application can be dismissed on the ground of being made out of time alone.

8.However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

9.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

10.In sum, the applicant claimed for non-refoulement protection because if refouled to India, she would be ill-treated or even killed by two loan sharks for an unsettled debt.  

Withdrawal of the Leave Application

11.Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 15 May 2025 to close her case against the Board.  In other words, the applicant wanted to withdraw the Leave Application.  However, she did not state that it was safe for her to return to her home country or that her problem in her home country had been solved.

12.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

13.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

14.Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

15.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.The applicant did not assert any grounds for her intended judicial review in Form 86, nor in her supporting affirmation dated 4 December 2024.

Discussion

17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

18.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

19.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 22 March 2024 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

20.As can be seen from paragraphs 69 to 76 of the Board’s Decision, the Board found multiple significant and material inconsistencies and contradictions in the applicant’s evidence given to the Director and at the Board’s hearing.  Taking into account all the evidence available, the Board did not accept that the applicant was a truthful and credible witness.  The Board found that the applicant had presented a fictional account to advance a claim for non-refoulement protection.  The Board did not accept that the applicant had borrowed 2 million rupees from the loan sharks and that the loan sharks had threatened to kill her upon her return to India.

21.The Board went on to assess the applicant’s risks on all the applicable grounds under the USM and found that the applicant’s claim for non-refoulement protection would also fail even if her evidence was accepted.  The applicant’s fear arose only from her inability to repay a personal debt.  No state acquiescence was involved and the alleged ill-treatment was not inflicted on her for a Convention reason.  The applicant was only assaulted once and she did not report the assault to the police.

22.Further, country of origin information (“COI”) showed that despite police corruption in India, the government had taken practical steps to curb corruption and improve the effectiveness of the police and public officials.  The Board found that reasonable state protection was available to the applicant. 

23.The Board also found that internal relocation for the applicant was feasible and not unduly harsh.  There was no evidence that the loan sharks had the financial resources and ability to locate her in such a large country and in cities with huge population.  The applicant was able to stay away from the loan sharks from 2015 to 2021 and worked in a factory without being found.

24.Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

25.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

27.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits.

Dated the 14^th day of January 2026

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