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HCAL 3209/2019
[2025] HKCFI 3330
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3209 of 2019
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BETWEEN
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Ravelomanantsoa Hajatiana Holisoa |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 16 June 2025.
The applicant
3. The applicant, aged 52, is a national of Malagasy. He is an illegal immigrant. He last entered Hong Kong on 31 December 2017 and was given a visa valid until 14 January 2018. He overstayed, but surrendered to the Immigration Department on 15 January 2018.
4. According to the applicant, various persons owe him business debts for vehicle rental charges, while he in turn owes other persons business debts for vehicle rental charges. Unknown persons tried but failed to kidnap his son. Unknown people lurked outside his house. No one has directly subjected him to violence or directly threatened him but someone is after him, and he assumes that that ‘someone’ is one or more of his debtors or creditors.
5. Details of his claim are set out at paragraphs 32-44 of the Board’s Decision.
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of Notice of Decision dated 21 September 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. The Board decided that it was not necessary to conduct an oral hearing for his appeal.
9. Having considered the evidence, the Board found that given the facts of the applicant’s case, there is no evidence to show that he is subjected to any real risk of harm under any of the applicable risks and, even if his view were wrong, internal relocation is viable, if he returns to his country. [48]-[55] & [75]-78] See hyperlink
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003209_2019_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 29 October 2019 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that he did not have reason to say that the Board’s Decision was wrong.
14. The applicant has raised no valid ground to challenge the Board’s Decision.
15. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
16. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 21st day of August 2025
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(Klein Tse)
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 21/8/2025
Ravelomanantsoa Hajatiana Holisoa
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 21/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13696/18/10/38/MGD3
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3131/18 (formerly RBCZ 10361/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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