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HCAL 375/2020
[2025] HKCFI 1817
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 375 OF 2020
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BETWEEN
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Atmi Bt Karya Sadin |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “The Torture Claims Appeal Board’s decision dated 20 January 2020”.
2. The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 11 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 11 March 2020.
2. However, the Board’s decision that confirmed the decision of the Director of Immigration (“the Director”) dated 23 March 2018 was made on 20 January 2020 (“the Board’s Decision”), not 11 March 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000375_2020_files/the_Board's_Decision.pdf
3. It is clear that the applicant made a mistake in respect of the date of the Board’s Decision. This court will treat the Leave Application as being made in respect of the Board’s Decision dated 20 January 2020, instead of 11 March 2020.
4. By the Board’s Decision, the Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”).
Amendments
5. As the applicant has stated a wrong date for the Board’s Decision in Form 86, the decision in respect of which relief is sought is amended to the Board’s Decision dated 20 Janaury 2020 on this court’s own motion.
6. Further, the applicant did not name any putative interested party in Form 86 while the Director should be so named. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because she feared being abused or killed by her stepfather if returned to Indonesia. Her stepfather had raped and sexually abused her in the past since she was a child.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant failed to identify any ground for the intended judicial review. She merely stated in the supporting affirmation dated 11 March 2020 that she was unable to find a safe place to live in her country and decided to stay abroad in order to save her life. She considered herself in great danger and believed that it was a very unfair determination of her claim without regard to her life.
Withdrawal of the Leave Application
11. However, by her latest affirmation dated and filed on 29 April 2025, the applicant made an ex parte application for leave to withdraw the Leave Application. The reasons given for the withdrawal application were that the applicant wants to go back to her home country in Indonesia and it is safe for her to go back.
12. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
13. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
14. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.
Discussion
15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
16. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 July 2019. The applicant was represented by a lawyer from the Duty Lawyer Service. The Board found the applicant to be credible and accepted that the applicant had been abused by her stepfather. The Board also accepted that the applicant has genuine, subjective fear of her stepfather. However, the Board found that the threat from her stepfather was a localised one and internal relocation was viable for the applicant. Thus, the Board did deal with the danger the applicant faced and would face, and the viability of internal relocation in the Board’s Decision. The Board concluded that there would not be any undue hardship and it is reasonable for the applicant to relocate to Jakarta, Surabaya or Bali, which are all far away from her home village.
17. The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. In fact, in view of the applicant’s latest affirmation confirming that it is safe for her to return to her home country, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.
18. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
19. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
20. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 12th day of May 2025
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( Thomas 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/Handed to the applicant/the applicant’s solicitors
on 12/5/2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 12/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11049/18/4/59/I1238
Director of Immigration
Putative interested party’s ref. no.: QA T/C3859/17 (formerly RBCZ 11817/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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