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HCAL 2150/2020
[2026] HKCFI 1807
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2150 OF 2020
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BETWEEN
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Rasoanirina Nicole Clain |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the applicant be amended to “Rasoanirina Nicole Clain”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 October 2020”.
2. 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 28 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 16 October 2020 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 16 October 2020 (“the Board’s Decision”), which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 January 2020 (“the Director’s Decision”).
3. As the applicant had attached a copy of the Board’s Decision to her supporting affirmation dated 28 October 2020, it is clear that the applicant was referring to the Board’s Decision in her Form 86. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002150_2020_files/the_Board's_Decision.pdf
4. The Board found that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.
Amendments
5. In Form 86, the applicant spelt her name as “Rasoamirina Nicole Clain” but her name should be “Rasoanirina Nicole Clain” according to her recognizance document.
6. The applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.
7. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
8. Thus, this court makes an order on its own motion to amend the name of the applicant to “Rasoanirina Nicole Clain”, the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 16 October 2020”.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to Madagascar, she feared being harmed or killed by a neighbour, Ravenlonjanahary Michael (“M”). The applicant had decided to refuse M as a suitor, after M hit her twice when he became angry.
Oral hearings
11. The applicant requested for an oral hearing of the Leave Application and her case was first heard on 18 November 2025.
12. However, the applicant indicated at the hearing that she required the assistance of a Malagasy interpreter. The hearing was thus adjourned to arrange an interpreter for the applicant.
13. At the resumed hearing on 5 March 2026, the applicant confirmed that she could communicate properly with the interpreter. When this court asked the applicant for the grounds of her intended judicial review, she replied that she encountered some problems with marriage in Madagascar and somebody beat her when she refused him. She confirmed that these problems had been presented to the Board. She did not quite understand what was wrong with the Board’s Decision, but that person might beat or kill her if she did not leave Madagascar, and she just wanted to stay in Hong Kong.
Grounds for judicial review
14. 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).
15. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation. As aforesaid, she confirmed that she had presented all her problems to the Board and she did not understand what was wrong with the Board’s Decision at the oral hearing before this court.
Discussion
16. 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).
17. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
18. In assessing the appeal by the applicant, the Board held an oral hearing on 31 August 2020. The applicant was present and was given the chance to present her case to the Board in person.
19. As can be seen from the Board’s Decision, the Board found that the purpose of the act or conduct of M in assaulting the applicant did not fall within the purposes of torture as defined in section 37U of the Immigration Ordinance and was unrelated to any Convention reasons. The injuries the applicant sustained did not reach the threshold of torture or a minimum level of severity. M was in the business of breeding and selling cattle. There was no evidence that M was a public official or in any way acting in any official capacity. There was also no evidence that the state had acquiesced in M’s treatment of the applicant.
20. Moreover, the Board had found from very extensive country of origin information (“COI”) that the government of Madagascar had made efforts to deal with concerns about corruption, human rights and the harassment of women. There were avenues for justice and redress of grievance opened to the people of Madagascar. The Board thus found that state protection would have been available to the applicant should she actively seek it.
21. Further, the Board found that it would not be unduly harsh for the applicant, being able-bodied with 11 years of education and 15 years of work experience including running her own business, to relocate to other major urban areas of Madagascar to avoid any perceived harm from M.
22. Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm and had not substantiated a case for non-refoulement protection.
23. The finding of facts, including the assessment of risk and COI, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
24. 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 errors 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.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
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 his 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: 25 March 2026
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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16708/20/1/70/MGD9
Director of Immigration
Putative interested party’s ref. no.:
ImmD T/C 1018/19 (formerly RBCZ 10740/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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