Khairun Nisha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 413/2022

[2026] HKCFI 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 413 of 2022

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 (Non-Refoulement Claims) Calvin Cheuk:    

1.   Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 31 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 22 March 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 30 September 2019 (the “Director’s Decision”).

2.The Applicant named the Adjudicator of the Non-refoulement Claims Petition Office as both the proposed respondent and the proposed interested party.  Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.The Applicant requested an oral hearing for the application.  The hearing took place on 2 February 2026 and the Applicant attended in person.

Background

4.The Applicant’s background, the basis of the Applicant’s claim and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.The applicable legal principles in this area are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of 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, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

6.In the Form, the Applicant contended that the Board was in breach of procedural fairness in the following respects:

(1)   It is trite law that a hearing before the Board is a re-hearing or a de novo hearing, and the Board is required to consider afresh the original decision and arrive at its own determination in respect of the claims.[2]

(2)   The Board’s Decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(3)   The Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that it did not satisfy the requirements.

(4)   The Board failed to meet the greater care and duty owed to a self‑represented claimant.

(5)   The Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(6)   It must be kept in mind that the Applicant’s life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture was involved.

(7)   In dismissing the Applicant’s appeal, there was no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supporting documents or turned its mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2.

(8)   The Applicant will face hardship if she was to return to her home country and the Board significantly relied on source of news which was not officially recognised, or was simply hearsay.

(9)   The Board relied on some cases which were outdated considering the dramatic changes.  The lack of credible source of information resulted in the Board making groundless speculation.

(10)   Although the Applicant’s problems in her home country were very severe and she had already submitted all the documents for her claim, the Board did not meet the greater care obligation and made the Applicant disappointed.

7.On or about 19 January 2026, the Applicant made further written submissions that:

(1)   The Board was wrong as a matter of law for not having applied the principle of irrationality to its decision.

(2)   “High standard of fairness” is required in the determination of a torture claims on the part of the Board, but it reviewed the matter lightly.

(3)   The Board’s Decision has the effect of finally disposing her torture claim and making her liable to be removed from Hong Kong to her home country where her life is not safe.  This entails real and significant implications to her substantive right not to be subject to torture and her right to non-refoulement protection.  The Board’s Decision has a significant effect on her torture claim.

(4)   The Board was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s Decision, and the Board was required to give reasons justifying its decision.

(5)   Although the problems were very severe in her home country and she had submitted all the proofs on behalf of her torture claim, but the Board’s Decision did not meet the greater care obligation and disappointed the Applicant.

(6)   The Board (and the Director) did not analyse the Applicant’s claims properly.

(7)   The Board was unreasonable in refusing the Applicant’s claims.

(8)   The Board (and the Director) failed to give the Applicant’s sufficient chance to arrange relevant evidence to her claims.

(9)   The Board was irrational in its failure to analyse and assess whether state protection exists in India and misdirected itself as to the extended meaning of state protection.

(10)   She would be subject to various risks of harm if she were to return to India

8.In the said written submissions, the Applicant also enclosed a letter from Mr Rai, Raj Kumar, the Senior Pastor of Hebron Community Hong Kong Church, and two photographs.

9.I do not consider any of the Applicant’s contention meritorious.

(1)   The points at [6(1)], [6(6)] and [7(3)] above were no more than stating the general legal principles or the general consequences of the Board’s Decision.

(2)   The point at [7(10)] above was merely a re-argument of the case that had been rejected by the Board.

(3)   As to the remaining points, they were nothing but vague assertions without particulars.

(4)   The Applicant has not identified how the Board acted unlawfully, unfairly, unreasonably or irrationally.  She did not explain how the Board failed to meet the alleged greater care and duty, or failed to analyse the Applicant’s claims properly.  She also failed to specify how the Board reviewed the matter lightly, or how the Board failed to give the Applicant’s sufficient chance to arrange the relevant evidence for her claims.  Nor did she identify what source of news or cases relied upon by the Board was/were “not officially recognised”, hearsay, or outdated. 

10.As to the letter and photographs enclosed to her written submissions, it appears to me that the purpose of these documents was, again, to re-argue the Applicant’s case that had been rejected by the Board.  In any event, at the hearing on 2 February 2026, the Court asked the Applicant (1) when the letter was written and (2) when the photographs were taken.  The Applicant could not provide any answer.  In these circumstances, I do not consider that these documents can assist the Applicant.

11.In the present case, the Board carefully considered the Applicant’s evidence.  A hearing was conducted on 5 October 2021.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [44]-[80] of the Board’s Decision).  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

12.As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

13.For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

Dated the 10^th day of March 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