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HCAL 389/2020
[2025] HKCFI 2398
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 389 of 2020
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BETWEEN
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Miftahkul Jannah |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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:
The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 November 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000389_2020_files/the_Board's_Decision.pdf
2. The basis of the applicant’s claim was that she would be harmed or killed by her husband, who had sexually assaulted her repeatedly. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
3. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 29 May 2025. Before the scheduled hearing, the applicant filed on 2 May 2025 an ex-parte application for the withdrawal of the judicial review. In her affirmation, the applicant only stated that she would go home as soon as possible.
4. At the scheduled hearing, the applicant attended the hearing in person, and confirmed her application for withdrawal. When the court asked her to give reason for the withdrawal, she stated that she was not allowed to take her case further. She further said that when she reported to the Immigration officer, she was asked if she wanted to go back to Indonesia. If she did not want to go back, she would be detained. The reason she gave for the withdrawal was due to the threat made by the Immigration Officer. In light of her serious allegations the applicant made, I asked her to provide her evidence under oath, which I will separately deal with below.
Discussion
5. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
7. In her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.
8. In light of her change of mind in relation to her withdrawal application, I asked the applicant at the hearing whether she had any grounds she wished to submit in support of the Leave Application. The applicant said that she had nothing to say. All she was asking for was to be given more time in Hong Kong.
9. As the Courts have repeatedly stated, 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.[3] In the present case, the Board found that the risk of harm from the applicant’s husband was low. This is because he had not contacted her or her parents for many years, and that the abuse he inflicted was not the most serious of its kind. The Board also found that state protection would be available and internal relocation would be viable. The Board thus rejected the claim. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
10. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant provided no grounds in support of the Leave Application either on papers or at the hearing. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].
Cancellation of the withdrawal application
11. According to the applicant’s evidence given under oath at the hearing, she alleged that her withdrawal application was made under threat made by an Immigration officer. She has in fact wanted to review the Board’s Decision. She stated that the reason why she had changed her mind after she had filed her withdrawal application because she had seen some of her friends being detained. She was scared of being detained.
12. I have reservations in the veracity of the applicant’s allegations. However, in light of her allegations, I believe it is appropriate to disregard her withdrawal application, and make no order in respect thereof. Based on the discussion on the merits of the Leave Application, this court should make an order of dismissal of the Leave Application.
Order
13. The Leave Application be dismissed.
Dated the 13th day of June 2025
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(Alfred Chan)
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 Applicant
on 13/6/2025
Miftahkul Jannah
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 13/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14474/18/11/317/I1551
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4267/18 (formerly as RBCZ 10002/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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