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HCAL 2841/2019
[2025] HKCFI 2724
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2841 of 2019
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Yuliatin |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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:
1. The Form 86 be amended on the court’s own motion.
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 26 September 2019, 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/adjudicator of the Non-Refoulement Claims Petition Office ("Board") dated 24 Sept 2019 (" Board's Decision") dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 8 November 2018 (" Director's Decision") rejecting the applicant's non-refoulement claim.
2. In Form 86, the applicant named the Board and the Director as the proposed respondents as well as the interested parties. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
3. The applicant has requested for an oral hearing. On 26 March 2025, the applicant filed an affirmation for the withdrawal of the Leave Application. On 17 April 2025, the court also received a memo from the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department. Enclosed with the said memo is the applicant’s signed letter dated 2 April 2025 in the Indonesian language together with an English translation applying for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Background
4. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
5. The applicant is a national of Indonesia. She arrived in Hong Kong on 30 October 2010 to work as a domestic helper. Upon the premature termination of her contract on 15 January 2012, she did not depart and overstayed since 30 January 2012. On 15 January 2016, she was arrested by police for overstaying. On 19 January 2016, she was convicted of the offence of breach of condition of stay and was sentenced to 4 months’ imprisonment. On 24 April 2016, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by her mother’s creditor for having refused to marry the creditor’s son.
6. The Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant appeal to the Board.
7. In the Board’s Decision, the Board found that the applicant was not a credible witness and that she had fabricated her claims to bolster her non-refoulement protection. After the Board had concluded all of the applicant’s evidence individually and cumulatively including her personal circumstances, the Board concluded that the applicant did not face a real risk of harm either from the mother’s alleged creditor or from the creditor’s son. The Board dismissed her appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
8. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see 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.
Discussion and conclusion
9. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. In her supporting affirmation of the same date, she only deposed that the creditor’s son still wanted to marry her and would kill her. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.
10. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks.
11. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
Withdrawal of Leave Application
12. In her affirmation, the applicant stated that she wanted to withdraw because of “a problem back at home” without any giving any further details. However, in the letter enclosed with in the said memo referred to in [3] above, the applicant was able to give her reason for the withdrawal, which was that the issues in her home country had been resolved and she could return home.
13. 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.
Orders
14. The Form 86 be amended on the court’s own motion.
15. The Leave Application be dismissed.
Dated the 30th day of June 2025
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( Alfred CHAN )
for Registrar, High Court |
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 30/6/2025
Yuliatin
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 30/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 14530/18/11/373/I1556
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4029/18 (formerly RBCZ 11784/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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