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

HCAL 107/2023

[2026] HKCFI 4449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 107 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:

1.  The Form 86 be amended to name the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

1.By a Form 86 filed on 27 January 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 12 January 2023 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 31 January 2022 and rejecting the applicant’s non‑refoulement claim.

2.In the Form 86, the Board was named as the putative respondent and the putative interested party. The Immigration Department was named as another putative interested party. The only putative interested party should be the Director instead. The Form 86 shall be amended accordingly on the court’s own motion.

3.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.

4.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.

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

6.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

7.In the affirmation in support of the present application, other than certain factual background, the applicant has made several complaints which can broadly be summarized as follows:

7.1.  The applicant did not agree with the decisions of the Director as well as the Board, as her claim had been determined unfairly (see paragraph 3).

7.2.  After she was advised by the Duty Lawyer that there were no merits for the appeal against the Director’s decision, she was no longer provided with free legal representation and interpretation services. She had to fill in the notice of appeal by herself with very limited and unprofessional help from a friend. With very little guidance, she could not refer to any authorities and put in the grounds comprehensively (see paragraph 8).

7.3.  The applicant was not arguing that she was entitled to free legal representation, but adequate amount of language assistance was crucial for her case and the absence of which should be considered procedural unfairness. Without sufficient language assistance, it was hard for her to understand the notice of appeal, fill in the relevant information, and receive, understand and respond to any correspondence given to her by authority. She filed an appeal because her life was in danger, but she could not understand the procedure (see paragraph 9).

7.4.  The applicant’s non-refoulement claim was one case, and therefore even though the Director’s decision and the Board’s Decision were separate decisions, the applicant should be entitled to appeal against those decisions that would be out of time, particularly she had to appeal to the Board first (see paragraph 10).

7.5.  Neither the Director nor the Board had taken her unique situation into account fairly and sequentially (see paragraph 11).

7.6.  She was deprived of her basic right as a litigant to be informed of her legal rights and to be duly informed of all information. There had been no legal assistance or language assistance. The Board’s Decision had never been read or translated to her in her first language, and she could not provide full grounds of an appeal without being advised properly of the reasons for the rejection of her claim. The fact that she had not been receiving such basic assistance was in a way hindering her appeal and was procedurally unfair (see paragraph 12).

7.7.  The hearing before the Board took place with interpreter, so that the Board knew the applicant did not speak, read or write English. However, the Board’s Decision was written in a language that the applicant did not understand and there was no certified interpreter or translator provided to the applicant to help her understand the reasons for rejecting her claim. Notwithstanding the Board’s legal duty to give reasons, the applicant could not understand any of the reasoning despite it being written on paper (see paragraphs 13 to 15).

7.8.  Should there be any reasons for rejecting the applicant’s claim without having first made enquiries with her or allowing her to clarify such issues, it should be considered wrongful case management (see paragraph 16).

7.9.  The fact that the Board’s Decision was never translated or read to the applicant should be considered a lack of assistance. Without knowing the reasons behind the rejection of her claim, she was deprived of the opportunity to make a full application for leave to apply for judicial review, and she reserved the right to submit further evidence either in oral or in writing upon the Board’s Decision being read back to her in her first language through qualified interpreter. The application for leave to apply for judicial review should be allowed on this ground alone as the adjudicator had wrongfully exercised his case management power. The lack of language assistance to enable the applicant to understand why her appeal failed was unfair and the full participation in her appeal extended to understanding such determination (see paragraphs 17 to 19).

7.10.  The decision of the Immigration Department was biased and was made based on the wrong case management power. The Immigration Department was merely trying to dispose of her claim as quickly as possible and therefore did not carefully consider all the information and evidence available (see paragraph 21).

7.11.  The applicant requested (i) a hearing before a judge to hear the applicant’s case once again with the assistance of an interpreter, and (ii) the Board’s Decision to be translated to her (see paragraphs 20 and 22).  

8.At the hearing on 8 May 2026, at which the applicant was assisted by an interpreter arranged by the Court:

8.1.  I inquired with the applicant whether she had requested the person who helped her prepare the Form 86 and the affirmation in support to explain the Board’s Decision to her. The applicant responded that it did not come to her mind to make such request.

8.2.  The applicant confirmed that she did not have any submissions to supplement the documents filed in support of the application under the Form 86.

9.Having considered all the applicant’s complaints set out in the affirmation in support, I find none of them to have any merits.

10.The applicant’s various complaints about procedural unfairness are mainly based on the lack of (i) legal and language assistance in the filing of appeal against the Director’s decision, and (ii) translation of the Board’s Decision.

11.As the Court of Appeal has repeatedly held, the high standard of fairness requires by law does not mean that legal or interpretation service has to be made available at any time the applicant desires: Re Sanjaya Kumar Magar [2022] HKCA 299 at paragraph 23, also Re Tariq Farhan [2018] HKCA 17 at paragraph 11. The applicant already had the benefit of legal representation in presenting his case to the Director.  

12.Further, the applicant stated in paragraph 8 of the affirmation in support that she had received advice from the Duty Lawyer Service in respect of the Director’s decision. She has made no complaint about the language assistance she received at the appeal hearing before the Board, which was a rehearing of the applicant’s non-refoulement claim. At paragraph 20 of the Board’s Decision, it was recorded that the applicant confirmed the truth of all of the claims she had made to the Immigration Department, and she did not wish to alter or amend those documents. As such, I see no merits in arguing that it is procedurally unfair for not receiving any legal and language assistance in filing of the notice of appeal against the Director’s decision.

13.The complaint of not having translation of the Board’s Decision is also unmeritorious. The Board’s Decision is fully reasoned and was drafted in English which is one of official languages in Hong Kong. There is no basis to assert that the Board has failed its duty to give reasons under law. As stated above, the high standard of fairness by law does not mean that interpretation service has to be made available at any time the applicant desires. In any event, both the Form 86 and the supporting affirmation are written in English, which suggests either the applicant is reasonably proficient in English or she has received assistance in that language. The applicant’s explanation at the hearing before this Court that it did not occur to her to invite the friend who purportedly assisted her in preparing the English documents to translate the Board’s Decision for her is unconvincing. I see no merits in any complaint based on the lack of translation for the Board’s Decision.     

14.Therefore, the lack of legal and language assistance in the two stages as complained by the applicant could not be a valid ground for asserting any procedural unfairness.

15.Also, the complaint the Immigration Department was simply trying to dispose of the case quickly and therefore had not considered the facts and evidence flies in the face of the contents of the Director’s decision, which contained a detailed assessment of all the facts and evidence of the claim. In any event, the Director’s decision was superseded by the Board’s Decision, which has reassessed the whole claim in detail.

16.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.

17.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board had concerns about that the credibility of the applicant. Despite she claimed that she would be targeted by the West Bengal government should she return to India because of her involvement in a political party named GJM, she was unaware of certain major political development which was directly relevant to her factual claim and should have been known to her. The Board found that the applicant had failed to establish her claim because of the vagueness of her claim and also her own evidence that she had never been harmed (paragraphs 29 to 38). 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.

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

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

Dated the 11^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