SITI MUALIFAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1268/2020

[2025] HKCFI 5307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1268 of 2020

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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name the Board as a putative respondent, the DI as a putative interested party and the Board’s Decision as the decision sought to be reviewed;

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 23 June 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision by the Director of Immigration (“DI”) dated 2 October 2019. There was however no decision of that date attached to the Form 86 or the supporting affirmation; neither was one found in the documents provided by the secretariat of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) to the Court. Instead, according to the documents of the Board, the DI made a decision on the Applicant’s case on 17 September 2019 (“DI’s Decision”) and the Board made a determination on the Applicant’s appeal/petition against the DI’s Decision without a hearing on 23 March 2020 (“the Board’s Decision”).

2.  The Applicant was absent from the oral hearing of this leave application. On the authority of Re Abdus Salam [2019] HKCA 1091, I proceed to deal with the leave application based on the materials placed before me.

3.  As the Applicant was absent, this Court did not have the benefit of clarifying with her what exactly her challenge is. Trying the best I can in the interest of the high standard of fairness in favour of the Applicant, I named the Board’s Decision as the decision sought to be reviewed on my own motion and amended the roles of the DI and the Board accordingly, as it is trite that once the Board’s decision is made, the DI’s tier-one decision is superseded and should not be made the target of a judicial review.

4.  No ground of judicial review was set out in the documents filed. The Form 86 and the affirmation had no substance, and only certain pages of the record of her screening interview with the DI’s officer and her non-refoulement claim form were exhibited. Apparently, her claim was based on a money lending dispute and the fear that the lender might harm her.

5.  In the absence of any solid ground of judicial review, I am unable to see any merits in it. I have considered the reason why the Board chose to dispose of the Applicant’s case without an oral hearing, and am satisfied that it had applied the correct principles and it was within the Board’s discretion not to convene one. The leave application is accordingly dismissed.

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

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