Thapa Gita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 173/2022

[2026] HKCFI 1470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 173 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) Connie Lee:

1.   Form 86 be amended, naming only 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.   Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 2 June 2021 be refused.

3.   The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 2 March 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 2 June 2021 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 17 June 2020 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.The Applicant attended the oral hearing.  She updated this Court with her latest family circumstances i.e. she got married in November 2023 and is now waiting for the Hong Kong government to issue a visa to her.

Discussion

4.The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap. 4A.

5.In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[2]

6.First, the delay in question is substantial.  The Leave Application was filed 6 months late.  However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in her affirmation.  At the hearing, she simply said she was naive or ignorant to the law.

7.Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success. [3]

8.Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[4]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation.  As matter stands, the Applicant has failed to identify any valid or effective public law grounds.[5]

9.In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

10.The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[6]

11.The Board was acutely aware of the Applicant’s claim that she fears that she will be harmed or killed by the moneylender named Gopal and his men.  It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found that she had not made out her case in respect of any of the applicable grounds.  The Board was also entitled to find that (1) there was no such “severe pain or suffering whether physical or mental” inflicted on the Applicant; (2) it was never Gopal’s intention, nor will it ever be his intention, to inflict any harm on her or to kill her; (3) there is adequate state protection available; and (4) it is not unreasonable or unduly harsh for her to relocate within India.

12.There is simply nothing to indicate the Board had failed to take into account any relevant matters.  I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

13.For the avoidance of doubt, I should add that the Applicant’s oral assertions in relation to her latest family circumstances i.e. she got married in Hong Kong since filing the Leave Application and is waiting for a visa to be issued, have no relevance for present purpose. [7]

14.Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious.  Conversely, allowing her to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent.  For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

15.I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.

Dated the 27^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