Chhetri Sabitri v. Torture Claims Appeal Board

HCAL 623/2023

[2026] HKCFI 2887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 623 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Director of Immigration” be added as the putative interested party.

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

3.  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 27 April 2023, 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 21 April 2023 (“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/2023/HCAL000623_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 5 July 2021, which rejected her non-refoulement claim.

Amendment

3.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.Hence, “Director of Immigration” is added as the putative interested party on this court’s own motion.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to India, her life would be in danger from political opponents. She claimed that she would be killed by Suresh Thapa (“Thapa”) because of political reasons.

Withdrawal of the Leave Application

7.Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 23 June 2025 to close the Leave Application.

8.On 7 July 2025, the Director informed this court that the applicant was removed during the period from 30 June 2025 to 6 July 2025.

9.There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this 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.

10.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.”

11.Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

12.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).

13.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 27 April 2023.

Discussion

14.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).

15.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 specific ground being advanced by the applicant for the intended judicial review.

16.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 30 September 2022. The applicant was present and was thus given the opportunity to present her case to the Board in person.

17.As can be seen from the Board’s Decision, the Board had questioned the applicant extensively during the Board’s hearing to try to understand her case and the reason of her fear of returning to India.

18.The Board was not satisfied that the applicant was a credible or reliable witness. The Board considered that her account of the reasons she gave for leaving India and not being able to return there safely should essentially be rejected in its entirety.

19.The Board found that the applicant’s evidence with respect to the political parties was inconsistent. The applicant admitted to the Board at the hearing that she was not even a member of the Sikkim Democratic Front, of which she originally described herself as a loyal member. The Board also found the applicant’s evidence with regards to her relocation after the initial and only attack by Thapa in 2014 inconsistent with certain information on the applicant’s passport and foreign domestic helper visa applications. The inconsistency cast doubt on whether the applicant was even relocated from her home town at all.

20.Thus, the Board did not accept: (1) the applicant had any political involvement as claimed, or was beaten or threatened by political opponents as claimed; (2) the applicant left Bishal Gaon for the reasons claimed; (3) Thapa or anyone else involved in politics in Bishal Gaon called Chandrakala in Singtam or Anjali in Kolkota and conveyed to them any threats or warnings relating to the applicant; and (4) the applicant left India for the reasons claimed.

21.The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

22.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

24.The finding of facts including the assessment of evidence and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.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.

26.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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

27.For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 20^th day of May 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