UMAIYAH SITI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1039/2020

[2025] HKCFI 6383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1039 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being absent in open court;

1.  Leave is granted to the applicants to apply for judicial review of the Board’s Decision dated 12 December 2019;

2.  The applicants shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court;

3.  A copy of this Order be served on the DoJ to work out the proper directions for the hearing with the applicants; and

4.  Liberty to apply.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant is the mother of the 2^nd applicant, who is a minor of 15 years old.

2.  Leave is granted to the applicants to apply for judicial review of the Board’s Decision dated 12 December 2019 (“the Board’s Decision”) for the reason that although the Board had considered the merit of the 1^st applicant’s case, it did not have a separate consideration of the 2^nd applicant’s case, contrary to the decision of the Court of Appeal in Fabio Arlyn Timogan & Others v Evan Ruth, Esq, Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2020] HKCV 971, Hon Lam VP, Barma and Au JJA, 27 November 2020.

3.  The Board’s Decision preceded the revised version of section 37ZT of the Immigration Ordinance, Cap. 115, effective from 1 August 2021, which does not require the Board to consider the merit of the applicant’s case.

4.  There is no reason to sever the applicants’ joint application and the Board should take into consideration of the applicants’ facts and special circumstances in its decisions as they are relevant for consideration of the applicants’ claims. The Court of Final Appeal in Re C & Others v Director of Immigration & Secretary for Security & Another (2013) 16 HKCFAR 280, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Sir Anthony Mason NPJ, 25 March 2013, held that the Board has to consider that relevant matters:

“22. … Also, the law requires, and the legislature must have intended, that the Director would take into consideration relevant matters, and ignore irrelevant matters. This is how Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1KB 223, at 229 described this requirement:

‘For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”

5.  The applicants shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

6.  A copy of this Order be served on the DoJ to work out the proper directions for the hearing with the applicants.

7.  Liberty to apply.

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