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HCAL 3660/2019
[2025] HKCFI 1062
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3660 OF 2019
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BETWEEN
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Sumarni |
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 (Non-refoulement claims) Teresa Wu:
1. Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. By Form 86 (“Form 86”) filed on 9 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 18 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 15 July 2019, which rejected her non‑refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
2. In Form 86, the Applicant has mistakenly referred the Director as one of the proposed respondents and the Board as the proposed interested party. I have corrected them on my own motion.
3. The material facts of the present case, including the Applicant’s background, her case and claim, including the incidents alleged by her to show that she would be harmed or killed in Indonesia owing to her default in loan repayment, and the procedural and immigration history, etc. have been set out comprehensively in the Board’s Decision[1].
4. The Applicant is absent from the oral hearing. I have proceeded to consider the merits of her present application for leave to apply for judicial review (see Re Abdus Salam [2019] HKCA 1091). I have reminded myself of the seriousness of the issue at hand and hence the enhanced standard that has to be adopted in scrutinizing the decision of the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).
5. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board. The Applicant has completely failed to show that the Board committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision. It is clear from Form 86 that the Applicant has been unable to identify any grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142). Her supporting affirmation contains nothing of substance but a reproduction of the Board’s Decision. As the materials provided by her do not demonstrate any basis or ground to challenge the legality, rationality or fairness of the process below, the Court will not usurp the role of the Board as the primary decision maker and will not intervene by way of judicial review (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra), etc.).
6. For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 28th day of March 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 28/3/2025
Sumarni
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 28/3/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16117/19/7/83/I1727
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 375/19 (formerly RBCZ 10259/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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