Khatri Puja v. Torture Claims Appeal Board
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HCAL 1039/2023 [2026] HKCFI 5985 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1039 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 28 June 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 2 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 17 June 2022 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.The applicant named the Director as both the putative respondent and the putative interested party in Form 86, when the Board should be the putative respondent and the Director should only be the putative interested party. 4.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. The applicant’s case 5.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. 6.In sum, the applicant claimed for non-refoulement protection because if refouled to India, she would be at risk of being seriously harmed or killed by her step-brother, uncle, other family members and other members of the Hindu community, as she had converted to Islam in order to marry a Muslim man from Pakistan in Hong Kong and became a practicing Muslim. Oral hearing 7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 22 October 2026. 8.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 9.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 10.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). 11.The applicant did not advance any grounds for the intended judicial review in Form 86. 12.In her supporting affirmation dated 28 June 2023, the applicant merely stated that the affirmation was for leave to apply for judicial review against the decision of the Director of Immigration, and that her claim was not considered properly. Discussion 13.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). 14.Moreover, the applicant clearly stated in Form 86 that the decision in respect of which relief is sought was the decision dated “02-06-2023”, which was the date of the Board’s Decision. Furthermore, she only attached a copy of the Board’s Decision to her supporting affirmation. 15.Thus, it is clear that only the Board’s Decision should be the subject matter of the Leave Application. This court will deal with the applicant’s application for leave to apply for judicial review in respect of the Board’s Decision only. 16.The applicant’s mere statement in the said affirmation that her claim was not considered properly was mentioned without any particulars. She did not state how the Board had not considered her claim properly or how her claim ought to be considered. 17.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 18.Thus, the general assertion that was contained in the applicant’s supporting affirmation cannot help her at all. 19.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). 20.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. 21.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 16 January 2023 but the applicant was absent. The Board had given reasons in paragraphs 18 to 20 of the Board’s Decision as to why the Board decided to proceed to assess her claim based on all the materials before the Board, and this court finds the reasons fully justified. 22.As can be seen from the Board’s Decision, the Board observed that the applicant’s claims were lacking in detail in significant respects and that she did not provide detailed information regarding the particular allegations she had made, including her relationship with her husband, her conversion to Islam, the dates or specific details about conversations which supported her claim that she was threatened with physical abuse and/or serious harm and death by her step-brother, uncle or other family members in India. The applicant’s absence at the Board’s hearing made it impossible for the Board to discuss with her any of the aforesaid issues. Thus, the Board had insufficient evidence to be satisfied that the events and claims the applicant raised were factual (see paragraphs 25 to 30 of the Board’s Decision). 23.The Board did not accept that the applicant’s evidence about what occurred with her family in India was based on her personal and actual experiences. The Board was not prepared to and did not accept that she was subjected to abuse, threats, harassment, intimidation or threats of violence from, by or on behalf of her step-brother and/or uncle or any other member of her family or members of the Hindu community in her home area or India more generally because of her marriage in Hong Kong to a Muslim man from Pakistan. 24.On the evidence before it, the Board did not accept that the applicant had genuinely converted to Islam or that she was a genuine practicing Muslim or that she would wish to practise Islam and be a Muslim in the event that she returned to India. The Board found that the applicant’s claims were not credible. 25.Moreover, in assessing the applicant’s claimed risks against all the applicable grounds under the USM, the Board found that even if the Board were to afford the applicant the benefit of the doubt and accepted her claims in full, the persons the applicant feared were not agents of the state. Further, on the evidence and information before the Board, the Board did not accept that there were substantial grounds to believe that the police force in India, or the state of India more generally, would deliberately withhold protection from the applicant. There was no evidence of state acquiescence in the alleged conduct of the applicant’s step-brother or her family in the claimed circumstances. The risk that the applicant would face CIDTP[1] was assessed to be remote and thus not a real risk. The applicant’s fear of persecution was also not well-founded, as reasonable state protection was available to her. 26.From the available information, the Board found that the Indian government had taken reasonable measures to protect the lives and safety of its citizens, and that a reasonable system of state protection would be available to the applicant in the event the applicant sought assistance and protection from the harm she claimed to fear from her family members or from members of the Hindu community. 27.The Board was cognizant that without the applicant attending the Board’s hearing, the Board was unable to question her about the possibility of avoiding any harm she feared from her family or members of the Hindu community more generally by relocating to an area outside her home area and living in a place where people did not know her and would be unlikely to ever know of her circumstances in her home town or Hong Kong. 28.However, the Board did consider the reasonableness of internal relocation for the applicant in paragraph 55 of the Board’s Decision, and found that the evidence before it indicated that it would be reasonable for the applicant to relocate to a town or city outside her home area if she returned to India, if necessary. 29.Thus, the Board concluded that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the USM. 30.The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was primarily within the realm of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 31.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. 32.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 33.For reasons aforesaid, the Leave Application is dismissed. Dated the 28th day of October 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
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