Case Document

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HCAL 2598/2024

[2026] HKCFI 4989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2598 OF 2024

BETWEEN

	Ouseph Shibi	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 29-year-old national of India who arrived in Hong Kong on 19 November 2023 as a visitor with permission to remain as such up to 3 December 2023 when she did not depart and instead overstayed, and on 6 December 2023 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her husband over their marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Arthiyil Purayidom, Mariyanad, Puthcurichy, Trivandrum, Kerala, India. After leaving school with a Bachelor of Arts degree, she worked as a cafeteria operator, customer service and shopkeeper to make her living, and later married her husband and made their home in her home district.

3.However, their marriage did not fare well as her husband had a bad temper and would easily get angry with the Applicant and become violent and abusive towards her by slapping and punching her around, causing her constant fear and distress.

4.By 2022 the Applicant found herself unable to tolerate living with her husband anymore and therefore moved back to her parents’ home and suggested to divorce her husband who however became furious and threatened to kill her if she dared to do so.

5.As a result, the Applicant became fearful and stressful for her safety, whereupon her father suggested that she should take a leisure overseas trip to get away from the stress of her husband’s threats, and so on 19 November 2023 the Applicant arrived in Hong Kong for sightseeing, during which however she was informed by her father in India that her husband had come to his home to threaten to kill her upon her return, the Applicant was therefore afraid to return to India and overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 8 April 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 2 September 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her abusive husband upon her return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private domestic dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from her home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for her husband to locate her.

8.On 13 September 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 14 November 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 12 December 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over their domestic disputes that caused her to overstay in Hong Kong to seek protection, that even if her account of events prior to her departure from India were true that there was no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private domestic or marital dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to India if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.On 24 December 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant has recently on 31 July 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to India as soon as possible.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of September 2026

(Joyce Ooi)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3 September 2026 Ouseph Shibi Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 24567 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 881/24 (Formerly RBCZ 5000834/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)