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HCAL 425/2020
[2025] HKCFI 2364
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 425 of 2020
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BETWEEN
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Keri |
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.
Introduction
1. By prescribed Form 86 filed on 16 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 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 May 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1] which was covered by a prior decision of the Director dated 9 September 2013. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000425_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 because she was unable to remit money to him to enable him to repay his loans. 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 24 April 2025. The applicant attended the hearing in person, and informed this court that she had applied to be repatriated back to her country. She asked for the withdrawal of the Leave Application. In the circumstances, the consideration of the Leave Application becomes moot.
Discussion
4. The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
5. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
6. In her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.
7. 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.[4] In the present case, the Board found that the applicant was not a witness of truth due to material discrepancies between her testimony and her written claim form. The Board thus found that there was no real risk of harm, and rejected her appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
8. 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 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[5].
Application to Withdraw
9. In view of the applicant’s indication of her intention to withdraw the Leave Application, I asked the applicant to confirm her application under oath. The applicant affirmed that she wanted to withdraw the Leave Application as she was now able to handle the situation. She also confirmed that she was making the withdrawal application voluntarily and understood the consequences of her withdrawal- that the Board’s Decision would remain binding.
10. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Order
11. The Leave Application be dismissed.
Dated the 9th 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 9/6/2025
Keri
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 9/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11772/18/5/357/I1344, TCAB 761/13/9/41/I276
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 941/18 (Formerly RBCZ 2001296/14), QA T/C 717/13 (formerly RBCZ 209/13)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] Re Zunartyah [2018] HKCA 14 at [23].
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[4] 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] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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