CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3776 of 2019
|
BETWEEN
|
| |
Korotenko Oksana |
1st Applicant |
| |
Korotenko Oleksandra |
2nd Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-Refoulement Claims Petition Office |
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;
Order by Deputy High Court K.W. Lung:
1. Leave for the 1st Applicant to apply for Judicial Review be dismissed; and
2. Leave for the 2nd Applicant to apply for Judicial Review be refused.
Observations for the Applicants:
THE APPLICATION
1. The 1st applicant is the mother (“the mother”) of the 2nd applicant, her daughter (“the daughter”), now aged 23. They are illegal immigrants. The came to Hong Kong as visitors on 12 May 2017 when the daughter was 15 years old. They overstayed.
2. The applicants jointly applied for leave to apply for judicial review of the Decision dated 13 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.
3. It can be seen that the date of the Board’s Decision should be 20 November 2019 as shown in the Board’s Decision. 13 September 2019 was the date they attended before the Board for the Board’s hearing. This error will be rectified below.
4. The Immigration Department had informed this Court that the mother had been repatriated. As such, this Court will not make any order for her application as it is pointless to do so[1]. I dismiss the mother’s application.
5. The daughter did not ask for a hearing. I shall deal with her application on the papers.
6. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party, and the Board’s Decision is dated 20 November 2019.
The applicants
7. Although the mother’s claim is dismissed, since the daughter’s case relies on the facts of the mother, this Court will consider the daughter’s claim on the facts of the mother.
8. The applicants are Ukrainian national.
9. The applicants lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by a battalion called Shakhtersk or Tornado because they had extorted her husband for his assets during the Ukrainian revolution in February 2014 and her friend told her that the battalion was going to kill her.
10. Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003776_2019_files/the_Board's_Decision.pdf
The Director’s Decision
11. The Director considered the applicants’ claims in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
12. By way of Notice of Decision dated 22 June 2018 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.
The Board’s Decision
13. The applicants appealed the Director’s Decision to the Board. On 13 September 2019, the Board conducted an oral hearing for their appeals. The mother and the daughter had given evidence and answered the Board’s questions.
14. Having considered the evidence, the Board made the findings below.
(1) The daughter’s evidence was that whilst her mother might be harmed, she does not know whether she faces a similar risk. She had never been threatened or harmed in the past but the problem of her mother and father might in some way impact on her. Many of the events described occurred when she was relatively young and her recollection of the events are understandably somewhat limited. [56]
(2) It will not be unduly harsh if they relocate to Kyiv. [113]
(3) They will not face any real risk of suffering proscribed harm should they return to Torez or a better option, Kyiv. [121]
(4) There were not substantial grounds for believing that they will be at risk of being subjected to any of the applicable risks. [123]-[125]
15. For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review
16. The applicants filed Form 86 on 18 December 2019 for leave to apply for judicial review of the Board’s Decision.
17. The daughter has not raised any valid ground to challenge the Board’s Decision.
DISCUSSION
18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
20. The Board had considered the claim of the mother and the daughter separately and together. There was no evidence that the daughter will face any real risk from the mother’s enemies.
21. The daughter is now of age. She has to establish her claim independently. She has failed to establish her claim.
22. The daughter therefore fails to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
23. I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
24. The mother’s claim is dismissed.
Dated the 3rd day of March 2026.
| |
(Allen LEE)
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 Applicants:
If leave has been granted, the Applicant or the Applicant’s 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 Applicants
on 3/3/2026
Korotenko Oksana
Korotenko Oleksandra
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 3/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12320/18/7/70/UKR2,
USM 12321/18/7/71/UKR3
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1132-1133/18 (Formerly RBCZ 11430-11431/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in AW v Director of Immigration and William Lam CACV 63/2015, Hon Lam VP, Kwan and Poon JJA (as they then were), 3 November 2015 held:
“67. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1).”