Thami Asha v. Torture Claims Appeal Board
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HCAL 1477/2023 [2026] HKCFI 4530 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1477 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 22 August 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 July 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 January 2023 and confirmed the same, which rejected her non-refoulement claim. The applicant’s case 3.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. 4.In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to India, she would be harmed or even killed by her creditor named Hari due to her inability to repay the loan obtained from him. Oral hearing 5.The applicant requested for an oral hearing of the Leave Application and her case was heard on 6 August 2026. 6.When this court asked the applicant for the grounds of her intended judicial review, she replied that it was the same reason she applied for non-refoulement protection, ie she had borrowed some money, and gave some money to her husband to repay the debt. She said that all the facts she presented to the Board were true, and she did not know what she should say. She added that she wanted to stay in Hong Kong for 2 to 3 more months. Grounds for judicial review 7.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). 8.The applicant did not advance any grounds for the intended judicial review in Form 86. 9.In the applicant’s supporting affirmation dated 22 August 2023, the applicant mentioned that she did not agree with the Board’s Decision, and reiterated the basis of her non-refoulement claim, namely that her creditor Hari and his friends would kill her because she failed to repay the loan. She added that the officer did not believe her and she had many objections. 10.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said affirmation at the oral hearing, and only reiterated the factual background of her non-refoulement claim and said that all the facts presented were true. 11.Her wish to remain in Hong Kong for 2 or 3 more months is not a ground for judicial review at all. Discussion 12.First of all, the applicant’s danger from her creditor had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 13.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). 14.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 valid ground being advanced by the applicant for the intended judicial review. 15.In assessing the appeal by the applicant, the Board held an oral hearing on 5 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board. 16.As can be seen from the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing to try to understand her case better. The Board gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment of the applicant’s claims and evidence were laid out in paragraphs 38 to 55 of the Board’s Decision, and it is not necessary to repeat the same here. 17.In gist, the Board found it hardly believable that the applicant would borrow such a large amount of money, ie 400,000 Indian rupees, from Hari for seeking employment in Hong Kong. The Board also found it improbable that no written document was made for a transaction of that amount. The Board did not accept the applicant’s claim that Hari, who was apparently not a loan shark or a professional moneylender, could or would harm or even kill her, if she was unable to repay the loan. The Board found that Hari had been accepting the interests arising from the loan without pressing for repayment of the principal, and continued to do so. The Board considered that Hari was apparently a sensible creditor who was willing to accept practical solutions. 18.Furthermore, there was a town committee in the applicant’s vicinity which could help to resolve disputes among the residents. The Board found from the applicant that she had a family house, with mortgage fully paid, which was worth 500,000 Indian rupees. Despite the applicant’s unwillingness to part with the family house, it could be used to pay off the loan. In any event, after litigation, she might be ordered by the court to sell the house to repay the loan anyway. 19.Moreover, the Board found that the applicant, after obtaining compensation from her employer in Hong Kong, only sent part of the money to her husband and another part to her sister in India, but nothing to Hari. The Board considered it a clear indication that the applicant was not that fearful about Hari causing her serious harm. 20.Thus, the Board found that the applicant had not been totally truthful about the circumstances of the loan, which constituted the foundation of her claim. 21.The Board also found that even if what the applicant said about the loan was true, the Board considered that Hari was not a professional loan shark and it was most unlikely that he would resort to the usual loan shark methods of cruelty to enforce the loan. The Board found that the applicant was never fearful of Hari using serious violence against her. If she was fearful before, she should no longer be in fear now, as Hari was willing to accept interests without demanding repayment immediately. 22.The Board found that if Hari became impatient one day and press for money, the applicant had the option to refer to the town committee to resolve the dispute or to take the route of litigation. In case Hari decided to use force, which the Board considered very unlikely, the applicant also had the right to seek help from the police or other relevant authorities. 23.In consideration of the applicant’s claims under the USM, the Board found that the applicant’s case was clearly a personal dispute which had no element of state involvement. By the applicant’s own evidence, Hari had not inflicted her with any pain and suffering. There was nothing to constitute torture under Torture Risk[1]. Moreover, none of the reasons applicable to Persecution Risk[2] applied in the applicant’s case. The applicant did not face a real risk of being deprived of life under BOR 2 Risk[3], and the minimum level of severity required to trigger protection under BOR 3 Risk[4] was lacking. 24.In view of the above findings, the Board considered that it was not strictly necessary to deal with the questions of state protection and/or internal relocation. However, the Board still discussed the said two aspects in paragraph 80 and paragraphs 81 to 85 of the Board’s Decision respectively. 25.Simply put, the Board found no indication that the state authorities would be indifferent or refuse to provide protection to the applicant. Moreover, it would not be unreasonable or unduly harsh for the applicant to relocate within her country, if she genuinely believed and insisted that the feared threats and/or violence could happen to her. 26.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 27.The finding of facts, including assessment of evidence and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 28.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. 29.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 30.For reasons aforesaid, the Leave Application is dismissed. Dated the 12th 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 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. [3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. |
Cases cited in this judgment