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HCAL 1631/2024
[2025] HKCFI 580
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1631 of 2024
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BETWEEN
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Royatun |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 19 September 2024, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 January 2024 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 October 2023 who had refused the applicant’s claim for non-refoulement protection.
Background
2. The background as taken from the decisions of the Director and the Board can be briefly stated as follows.
3. The applicant came from Indonesia. She last entered Hong Kong on 20 December 2019 and was permitted to remain as a domestic helper. Her employment was prematurely terminated on 1 May 2023 and she was required to leave Hong Kong by 15 May 2023, but she failed to depart and overstayed since 16 May 2023. She was arrested by police on 23 August 2023 and was given a suspended sentence. She lodged a non-refoulement claim on 7 September 2023, covering all applicable grounds - risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear that if she was refouled, she would be harmed or even killed by her husband.
4. The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.
5. On 22 January 2024, the applicant attended a hearing before the Board. The Board found the applicant’s an evasive and unreliable witness whose version of events unbelievable. In the Board’s Decision, the Board concluded that the applicant failed to establish on all the aforesaid grounds and in any event, state protection was available as well as internal relocation.
Legal principles applicable to judicial review
6. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.
Discussion and conclusion
7. The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she only exhibited a copy of the Board’s Decision without putting forward any grounds in support of the Leave Application.
8. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment. I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.
9. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
The removal of the applicant
10. The court was recently notified by the Director that the applicant had been removed from Hong Kong. We will send a copy of this judgment and the sealed order to the Director, who is requested to use best endeavours to forward them to the applicant.
Order
11. Leave to apply for Judicial Review be dismissed.
Dated the 6th day of February 2025.
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( Allen LEE )
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicants
on 6/2/2025
Royatun
Applicant’s ref. no:
Nil. |
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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 6/2/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22425
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1087/23 (Formerly RBCZ 5001056/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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