MUSYARIFAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1013/2020

[2025] HKCFI 4362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1013 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 26 May 2020, 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 / the Non-Refoulement Claims Petition Office (“Board”) dated 15 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001013_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named both the Board and the Director as the proposed respondents as well as the interested parties. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that she would be harmed or killed by her father for bringing shame to her family, due to her having given birth in Hong Kong to a daughter out of wedlock. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 July 2025. The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In her supporting affirmation for his Form 86, the applicant stated that the Board disregarded her dangerous situation.

8.  At the hearing, this court asked the applicant whether she had any further grounds she wished to submit in support of the Leave Application.  Apart from stating that she needed to stay in Hong Kong to take care of her daughter who is a Hong Kong resident, the applicant did not advance any grounds in support of the Leave Application.

9.  As the Courts have repeatedly stated, 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.[3] In the present case, whilst the Board accepted the applicant’s account that she had a child born in Hong Kong out of wedlock, the Board assessed that there was no real risk of harm. This was because the Board found that the past ill-treatment which was in the form of one single verbal threat from her father did not reach the requisite level of severity, and that the applicant had not contacted her father since the threat.  It therefore concluded that there was no risk of harm. The Board also found that internal relocation would be viable, and that reasonable state protection would be available.  Thus, the Board rejected the claim.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to find that the applicant failed to establish that her past ill-treatment failed to attain a minimum level of severity after having found that the past ill-treatment only consisted of verbal threat.  I find that the Board was entitled to find that the applicant would not face any risk of harm.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision either on paper or at the hearing.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

11.  The Form 86 be amended on the court’s own motion.

12.  The application for leave to apply for judicial review be dismissed.

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