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

HCAL 607/2023

[2026] HKCFI 4312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 607 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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2023 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below.

2.The applicant was absent at the hearing on 20 July 2026. I shall deal with her application on the papers.

The applicant

3.The applicant is a national of India. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the loan-shark because she was unable to repay her debt.

4.Details of her claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000607_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim 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”).

6.By way of Notice of Decision dated 15 September 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 21 February 2023, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

8.Having considered the evidence, the Board rejected her evidence that she was indebted to a loan shark and was under threat; and it found that she remained in Hong Kong was not for the fear of her safety [53]; that state protection will be available and internal relocation is viable, if required.

9.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 24 April 2023 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant stated in her affirmation that the adjudicator did not understand the documents she submitted and the translator did not assist her and he was unfriendly to her.

DISCUSSION

12.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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The allegations under paragraph 11 are not in the Board’s Decision. If she had appeared before this Court, she might have further elaborated her reasons. However, she was absent without any explanation. It is difficult to envisage how the documents will assist her appeal as the adjudicator rejected her evidence after hearing her oral evidence. The issue of the translator or interpreter is not relevant because there was no issue that the Board did not understand her evidence.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 5^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