Gurung Sarita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 363/2023

[2026] HKCFI 4355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 363 of 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 10 March 2023 (“Form 86”), the applicant, a national of India, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 15 December 2022 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 17 June 2021 and rejecting the applicant’s non-refoulement claim.

2.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

3.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

4.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.The applicant has not provided any grounds for the intended application for judicial review.

7.At the hearing on 8 May 2026, the applicant confirmed that she did not have any submissions to supplement the documents filed in support of the application under the Form 86.

8.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

9.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

10.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 10 November 2021 (see paragraphs 46 and 47 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process.  

11.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board found the applicant evasive and was doubtful about the veracity of the applicant’s claim that she was raped and injured by the loan shark, as the applicant did not report to the police or seek medical assistance for the injuries after the purported assault by the loan shark, but instead made a decision to take up a job in Hong Kong as a domestic helper afterwards and only made a non-refoulement claim while she was overstaying in Hong Kong after the termination of the employment contract (see paragraphs 67 to 70 and 99 of the Board’s Decision). The Board further held that there was no sufficient evidence that applicant would be harmed by the loan shark or his men if she were to return to India (see paragraphs 100 and 101 of the Board’s Decision). In any event, the Board took the view that state protection would be available, and internal relocation would be possible and not unduly harsh (see paragraphs 82 to 90 and paragraphs 91 to 98 of the Board’s Decision). Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

12.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 4^th day of August 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