ANOWAN, AMINDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 149/2024

[2026] HKCFI 4075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 149 of 2024

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 the documents and oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to add the Director of Immigration as the putative interested party; and

2.  Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 12 January 2024 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 29 December 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 24 May 2023 in refusing the applicant’s non-refoulement protection claim. She named the Board as the proposed respondent but nobody as the interested parties.

2.  I amended the Form 86 on my own motion to add the Director as the putative interested party.

3.  The applicant did not request for a hearing and this application is to be dealt with by consideration of the documents only.

BACKGROUND

4.  The applicant is a national of Thailand. She seeks non-refoulement protection on the basis that if she is refouled, she would be hurt by drug dealers and money lenders that her mother and stepfather had been involve with. Her personal background, the relevant facts and relevant procedural history have been set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and the supporting affirmation filed for the application, the applicant has not mentioned any specific grounds to apply for leave for the judicial review. In particular, she did not identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

7.  Having looked at the Board’s Decision, I find the Board has carefully taken into consideration of the applicant’s case and evidence [12-32], including the applicant’s testimony at the hearing before it.

8.  The Board has carefully assessed the internal credibility of the applicant’s evidence, including all the contradictory and inconsistent evidence given by the applicant both at the interview with the director and at the hearing before the Board [17-22]. The Board has also carefully assessed the external credibility of the applicant’s evidence and identified the inconsistencies between the applicant’s evidence and objective Country of Origin Information (“COI”) [23-32]. In view of the contradictions and inconsistencies of the applicant’s evidence, the Board found the centrepiece of the applicant’s story cannot stand.

9.  For the sake of completeness, the Board also considered the applicant’s claim in respect of each of the four applicable grounds under the USM [35-53]. The Board has correctly stated the legal principles and analysed each of those grounds against the allegations made by the applicant before coming to the conclusion that the applicant failed to establish any of the applicable grounds.

10.  Despite rigorous examination and anxious scrutiny, I could not find any error of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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

Form CALL-1