SALMORIN JINKY TUPAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1357/2019

[2025] HKCFI 3780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1357 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of the Philippines who was subject or liable to removal by the Immigration Department had earlier raised a non-refoulement claim for protection but failed to return her completed Non-refoulement Claim Form (“NCF”) within the required period that her claim was treated as withdrawn under Section 37ZG(1) of the Immigration Ordinance, Cap 115, and when she subsequently sought to re-open her claim, her request was also refused by the Director of Immigration (“Director”) on 5 September 2018 upon finding that she had failed to satisfy an immigration officer that due to circumstances beyond her control that she had not been able to return her completed NCF as required.

2.  On 31 December 2018 and 28 January 2019 the Applicant filed 2 separate Notices of Appeal to the Board against this Decision of the Director, but as it was deemed to have been filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT (2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 12 April 2019 the Board refused to allow the late filing of the Applicant’s Notices of Appeal upon finding that her bare assertion of her suffering from serious medical condition without providing any supporting medical document or evidence and her HKID being lost were not acceptable, and that there were no special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal.

3.  On 20 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she attached a copy of the Board’s decision but without putting forth any proper ground for her intended challenge, nor did she request for an oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

4.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

5.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

6.  Moreover, the Applicant on 30 December 2023 and 17 January 2024 wrote to the court and requested to withdraw her application and return to her home country and receive medical check-ups but without providing any reasons or explanations as to what have happened to her claimed problems in her home country.

7.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her wish to return to her home country, and further to the court’s leave granted to the Applicant’s request for withdrawal of this application on 24 January 2024, I accordingly dismiss her leave application.

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