Pulami Gangi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 543/2022

[2026] HKCFI 3891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 543 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

1.  The Form 86 be amended to name (a) the Board as the putative respondent; (b) the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.By a Form 86 filed on 27 June 2022, the Applicant sought leave for judicial review of (a) the decision of the Director of Immigration (“DI”) dated 14 October 2020 and (b) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 11 April 2022.

2.As the Board has already reviewed and rejected the Applicant’s appeal/petition against the DI’s decision, the correct target of this leave application should be just the Board’s decision.

3.The Board’s decision dated 11 April 2022 would be called “the Board’s Decision” in the following. It was made after a hearing on 21 July 2021 (which was attended by the Applicant).

4.The Applicant is an Indian national who arrived in Hong Kong in 2016 to work as a foreign domestic helper. Her non-refoulement claim was based on the alleged risk of harm from a wealthy and influential village loan shark named as Dhiraj, from whom her late father had accumulated gambling debts exceeding 500,000 rupees. The Applicant asserted that despite securing private loans from her family and friends to clear the debt, her alcoholic father gambled the money away, causing the loan shark to launch targeted attacks against her family, including physical assaults on her father and persistent verbal threats of murder and rape against the Applicant herself. She further contended that she could not safely return to India or seek protection from Indian authorities because of the loan shark’s extensive connections.

5.The Board dismissed the appeal/petition on the basis that the claim stemmed from a “civil/private dispute” over “outstanding loan repayments” (paragraph 18 of the Board’s Decision). The Board rejected the Applicant’s claim on all applicable grounds, the details of which will be discussed in this Court’s evaluation below.

6.The Applicant was absent from the hearing before this Court, which was requested by her and scheduled for 25 February 2026. The Applicant has stated certain grounds on which relief is sought in her Form 86 and supporting affirmation, which are summarized as follows:

(1)  Ground 1 (failure to consider all applicable grounds of protection): In Section I and Section VI (Sub-sections B and C) of the Form 86, the Applicant argued that the Board had failed to consider all applicable grounds or had rejected them wrongly.

(2)  Ground 2 (irrationality): In Section VI (Sub-section A) of the Form 86, after re-stating the factual basis of her non-refoulement claim, the Applicant said the Board had wrongly held that the availability of State protection negated the possibility of feared treatment as such protection was not available to a poor person like her. It was also said the Board’s finding of internal relocation alternative was incorrect as she continued receiving threatening phone calls.

(3)  Ground 3 (reliance on non-official news): In paragraphs 9-10 of the supporting affirmation, the Applicant further argues that the Board had significantly relied on source of news which was not officially recognized or was simply hearsay. It was said some news were outdated, and the lack of credible information had resulted in groundless speculation that it was safe for the Applicant to go back to her country of origin.

7.Having vigorously considered the Applicant’s grounds and the Board’s Decision, I am of the view that none of the grounds is reasonably arguable.

Ground 1

8.The Applicant’s assertion that the Board had failed to consider all applicable grounds of protection is unarguable. From a reading of the Board’s Decision, plainly all applicable grounds had been considered.

9.The Board had dedicated specific sections/paragraphs in the Board’s Decision to analyze each of the applicable grounds. Persecution risk was evaluated in paragraphs 17-32. The Board found none of the grounds under the Refugees Convention (race and religion etc.) applicable to the Applicant’s case, there was no factual basis for a well-founded fear and State protection was available. In the ensuing paragraphs, the Board held that the case did not fall within the definition of “torture” under the Immigration Ordinance and the Applicant had failed to demonstrate that the ill-treatment she would face, if refouled to India, would attain minimum level of severity for the purpose of Article 3 of the Hong Kong Bill of Rights. Article 2 of the Hong Kong Bill of Rights (“BOR 2”) was also considered.

10.This Court finds the correctness of the statements in paragraphs 36-37 of the Board’s Decision open to academic debate. There, the Board referred to a communication issued by the United Nations Human Rights Committee GT v Australia (CCPR/C/61/D/706/1996; 4 December 1997) to state a general proposition that only States or State parties could violate the Applicant’s right to life, and such violation of right was not engaged in the present case. This Court has reviewed the communication, but does not think the proposition stated in the Board’s Decision can be derived from the communication. To the contrary, the Court of Appeal stated the following in Kulwinder Kaur v Director of Immigration [2022] HKCA 48 at paragraph 57:-

“ … The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons …”

11.Even though the Board might have been influenced by an incorrect legal approach in its BOR 2 assessment, ultimately, as the Applicant was found to have failed to adduce sufficient evidence to establish a real risk of being subjected to cruel and inhumane treatment by the loan shark under Article 3, it was not reasonably arguable that the assessment on BOR 2 would have been materially different even if the approach in Kulwinder Kaur had been applied. The evidence of State protection considered and accepted by the Board, as well as the assessment of the risk of future ill-treatment, would inevitably lead to a dismissal of the Applicant’s case under BOR 2. As relief in judicial review is discretionary, this Court does not find it reasonably arguable that the Board’s Decision should be quashed simply because of the statements in paragraphs 36-37.

12.Leave to apply for judicial review will not be granted for Ground 1.

Ground 2

13.I have reviewed the factual findings of the Board vigorously and anxiously, but I am unable to say that it was so unreasonable to the extent that no reasonable tribunal would have come to them. It has been mentioned time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board. The Court would not reopen the Board’s findings or make a determination on the case afresh. In my judgment, the irrationality argument is not reasonably arguable.

Ground 3

14.The Board did consider authoritative and contemporaneous institutional reports rather than relying on groundless speculation. At paragraph 28, the Board evaluated the Country Information Report: India issued by the Australian Department of Foreign Affairs and Trade (DFAT) on 10 December 2020. At paragraph 29, the Board further balanced its assessment by citing the UK Home Office’s January 2019 Country policy and information note: Actors of protection, India. These official sources were utilized to address the Applicant’s specific concerns regarding the capabilities and avenues of redress within the Indian legal system.

15.Even though the institutional reports are technically hearsay, they are admissible under the Board’s flexible evidentiary rules and properly weighed. They were also not outdated as matters stood at the time of the Board’s Decision. The Applicant’s assertion that the Board’s finding in relation to the situation of India was “groundless speculation” is not accepted.

16.This leave application is accordingly dismissed.

Dated the 10^th day of July 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