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

HCAL 2325/2020

[2025] HKCFI 4051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2325 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Application for Leave to apply for Judicial Review be struck out.

Observations for the Applicant:

1.  The applicant applied for leave to apply for judicial review of the Director’s Decision dated 13 November 2020 (“the Director’s Decision”), refusing his non-refoulement claim.

2.  The applicant appeared before the Court and confirmed that he had not appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s Decision.  He did not give any special reason for doing so.

3.  Section 37ZR of the Immigration Ordinance (“the Ordinance”) provides:

“A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) 　section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) 　section 37ZL(1) (revocation decision made by an immigration officer).”

4.  The Court of Appeal in Re Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018 held:

“42. The board may confirm or reverse the decision of the immigration officer but “must give its decision with reasons in writing.”  The board’s decision is final.

43. It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims.  The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.

45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

5.  This application is therefore an abuse of the “administrative structure” provided by the Ordinance without good reason and should be struck out.

6.  The application is therefore struck out.

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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