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

HCAL 1436/2025

[2026] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1436 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 for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant and the 2^nd applicant are husband and wife.  They are illegal immigrants.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 17 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).  Their joint application relies upon the facts of the parents.

3.The applicants did not ask for a hearing.

4.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                                                                                     

5.The applicants are nationals of India.  They are illegal immigrants.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by Raju Pal and his people from Bharatiya Janata Party because they were supporters of its rival political party, the Indian National Congress (“Congress Party”).

7.Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001436_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 the Director’s Decision dated 10 April 2025 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board.  On 26 May 2025, the Board conducted an oral hearing for their appeal.  The applicants had given evidence and answered the Board’s questions.

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

(1)   Although their first attempt to report to police bore no fruit, they could have reported the matter to a higher level of authority, police or the government authority.  There is therefore reasonable state protection available to them if they return to India.  [62], [74]&[93]

(2)   They had suffered no ill-treatment under BOR 2 or BOR 3 risk.  [81]

(3)   BOR 2 risk was simply not established.  [82]

(4)   They failed to establish their claim under any of the applicable risks.  [94]

12.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 23 June 2025 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the applicants have not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

15.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).

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

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

DISPOSITION

18.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 25^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