RE KOROTENKO OKSANA AND ANOTHER

CACV 244/2026, [2026] HKCA 984

On Appeal From [2026] HKCFI 1264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2026

(ON APPEAL FROM HCAL NO. 3776 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the appeal of the 1^st applicant (“the applicant”)  against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 3 March 2026[1] dismissing her application[2] for leave to apply for judicial review against the decision dated 20 November 2019 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed the appeal of the applicant and the Daughter (collectively “the Korotenkos”)  against the decision dated 22 June 2018 of the Director of Immigration (“the Director”)  which had in turn rejected the Korotenkos’ non-refoulement claim having regard to the torture risk,[3] BOR 3 risk,[4] persecution risk[5] and BOR 2[6] risk grounds.

2.  The present appeal concerns the applicant only.  The Daughter, now aged 23, has not appealed against the decision of the Judge.  

Background

3.  The Korotenkos are nationals of Ukraine. They entered Hong Kong as visitors on 12 May 2017 and were allowed to stay until 26 May 2017.  However, they did not depart and overstayed.  On 29 May 2017, they surrendered to the Immigration Department. On 6 June 2017, they lodged their non-refoulement claims.  Their respective non-refoulement claim forms were completed with the assistance of the Duty Lawyer Service.  The Daughter’s form referred throughout to the applicant’s form, including the facts of her claim and the basis of her fear.

4.  The applicant has a son named Yegor Korotenko (“Yegor”)  who also claimed non-refoulement protection in Hong Kong but whose claim was rejected by the Immigration Department.  His subsequent appeal to the Board was dismissed. 

5.  The Korotenkos’ claims were made on the basis that if they returned to Ukraine, they would be abducted or harmed by members of a Ukrainian military unit that had abducted the applicant’s husband (“Yaroslav”), who has since disappeared.  The details of their claims were set out at [27] to [58] of the Board’s Decision.[7]  

6.  In summary, the applicant was born, and lived, in Torez City, Donetsk Oblast, in eastern Ukraine most of her life.  She married Yaroslav in 1992.  They have two children - the Daughter and her brother Yegor.  The applicant spent considerable time in Moscow, and Russian is her first language.  The Daughter was born in 2003 in Moscow, Russia. The family moved from Moscow to Torez in Ukraine in 2011 for better living and economic prospects.  The applicant claimed that in February 2014, Yaroslav was abducted from their home in Torez and given pressure to support a military unit called Shakhtersk Battalion (“the Battalion”)  to combat pro-Russian separatists and defend Ukraine.  Though Yaroslav was subsequently released and returned home, he was asked by the Battalion to contribute cash and vehicles to fund the cause.  The applicant claimed that a few days later, Yaroslav was abducted for the second time, and this time he did not return. She said that according to Yegor who had witnessed the abduction, three masked men broke into the family home. They beat up Yegor and took Yaroslav away in a vehicle. The Korotenkos were hiding in the bedroom and did not sustain any injuries.

7.  The applicant filed a missing person’s report with the police four days later.  Fearing for their safety, she took the Daughter and Yegor to Moscow, where she registered herself and her children as refugees with the Russian authorities. While in Moscow, the applicant began receiving harassing telephone calls from unknown men whom she believed were linked to the Battalion. In September 2015, she was confronted outside her Moscow apartment by three men. They demanded that she sign a document, which she did although she did not understand its contents.  They also broke her toes in the commotion and recorded her new telephone number. The applicant was later diagnosed with clinical depression. 

8.  In May 2017, the applicant decided to leave Russia for Hong Kong, where Yegor was living at that time. As mentioned above, the Korotenkos arrived in Hong Kong on 12 May 2017 as visitors and subsequently overstayed.   

9.  The Korotenkos said that they feared that the Battalion (or its later incarnation, the Tornado Battalion)  would harm them even though it had disbanded many years ago. They did not believe the Ukrainian authorities could or would protect them due to a negative attitude towards Russian speakers and people from the Donbass region. They claimed that relocating within Ukraine was not feasible due to discrimination against internally displaced persons from the east, who were viewed as enemies, and because they cannot read or write Ukrainian.   

10.  By a Notice of Decision dated 22 June 2018, the Director rejected the Korotenkos’ claim on all applicable grounds including BOR 2 risk, BOR 3 risk, persecution risk and torture risk. 

The Board’s Decision

11.  The Korotenkos appealed to the Board against the Director’s decision.  By a decision dated 20 November 2019, the Board dismissed their appeal.  Primarily, the Board rejected the Korotenkos’ claims on credibility grounds, finding that the claim about Yaroslav’s second abduction was fabricated.  Furthermore, neither of the Korotenkos articulated a clear belief that they would be harmed upon their return to Ukraine.  The Board accepted that the Korotenkos had lost contact with Yaroslav but found that neither of the Korotenkos had been harmed or harassed in the way they claimed.[8]

12.  The Board found that, even if it were to accept the Korotenkos’ claim that Yaroslav was indeed kidnapped, they had not established that they face a real risk of being targeted or harmed should they return to Ukraine in the foreseeable future.[9] 

13.  The Board further considered the option of internal relocation. It accepted that the applicant had a concern about returning to Ukraine given that the country was very different from the one she had left several years ago.  The Board raised the possibility of relocation to Kyiv. The applicant   referred to legislation recently passed (in 2019, shortly before the Board hearing)  designating Ukranian as the only official language in Ukraine (“the Ukranian language law”). The Board noted that commentators largely agreed that this legislation was clearly directed towards Russia and the Russian language, as it allowed the parallel use of Ukranian and official EU languages, but prohibited the use of Russian instead of Ukranian. The Board understood the Korotenkos’ concern in relation to the Ukranian language law and accepted that the law might even increase ethnic and linguistic tensions in Kyiv and elsewhere in Ukraine, but did not accept that it amounted to one of the proscribed harms; there was no evidence that either of the Korotenkos would fall within the category of persons obliged to speak and use Ukranian in the course of their official duties.  Having regard to a variety of country-of-origin information, the localised nature of the risk of harm, and the circumstances of the Korotenkos including their language difficulties, the Board assessed that it would not be unreasonable to expect the Korotenkos to relocate to Kyiv where they could lead a relatively normal life without facing undue hardship.[10]   

The Judge’s Decision

14.  By a Form 86 dated 18 December 2019, the applicant applied on behalf of herself and the Daughter for leave to apply for judicial review of the Board’s Decision.  She stated in her supporting affirmation that they were still in danger as the conflict in Ukraine was ongoing and that her husband was still missing.

15.  The appeal was dealt with on the papers, without an oral hearing. By a Form CALL-1 dated 3 March 2026, the Judge dismissed the applicant’s application and refused the Daughter’s application. The Judge stated that the court had been informed by the Immigration Department that the applicant had been repatriated, and as it would serve no practical purpose to grant a remedy in a judicial review to the applicant, her application would be dismissed, citing AW v Director of Immigration and William Lam, unreported,CACV 63/2015, 3 November 2015.   As for the Daughter, the Judge proceeded to deal with her application on paper as she had not requested a hearing.  The Judge considered that the Daughter’s claim had already been considered by the Board jointly and separately, with the applicant’s claim, and the Board had found no evidence that the Daughter would face any real risk from her mother’s enemies.   The Judge further observed that the Daughter had come of age and had to establish her claim independently, but that she had failed to do so.  He therefore refused her application as she failed to show any realistic prospect of success in the intended judicial review. 

The present appeal

16.  On 13 March 2026, the applicant filed a Notice of Appeal against the Judge’s decision.  She did not set out any grounds for seeking relief in her Notice of Appeal except to request more time to submit her written submissions.  She also stated that she was the only applicant in this appeal.

17.  The applicant subsequently lodged written submissions, saying that the assertion that she had been repatriated to Ukraine was factually incorrect.   She said she had not returned to Ukraine, either voluntarily or otherwise, since her arrival in Hong Kong with her daughter on 12 May 2017.  The Judge was therefore wrong to hold as such and to have failed to subject the Board’s decision to rigorous examination and anxious scrutiny. 

18.  At the hearing, the applicant said that:

a.  it was incorrect to say that she had been repatriated. She had all along been in Hong Kong. She did not know why it was said that she had been repatriated as she was reporting to the Immigration Department every two weeks;

b.  her son and daughter were both also living in Hong Kong, each having married and successfully applied for a dependant’s visa;

c.  she did not now believe that she would be harmed by the Battalion, as some of their members by now were no longer in Ukraine, some were in prison, and some had died;

d.  she could not go to Kyiv, as there was a war in Ukraine right now. She could not go back to Torez, where she was born and had lived for most of her life, as it was now occupied by Russian forces; and

e.  she has mental health issues and needs the assistance of her children. She has been receiving psychiatric and psychological treatment for the last two years.

Discussion

19.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The 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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

20.  From records available in the court file, it appears that the court was informed that the Daughter had been removed from Hong Kong in 2024. It appears that the Judge then proceeded on the mistaken basis that it was the applicant rather than the Daughter who had been repatriated. If what the applicant said at the hearing is correct, in fact the Daughter has also not been repatriated, contrary to what the court was told earlier.

21.  The ground on which the applicant’s application for leave to apply for judicial review was dismissed was therefore wrong. Given that the applicant has not had the benefit of having her application for leave to apply for judicial review considered at first instance, we have considered whether to remit the matter to the Judge. However, we have come to the view that in the absence of there being any viable grounds for judicial review, there would be no real purpose in doing so. We now explain why.

22.  First, the applicant did not put forward any viable grounds in support of her application nor identify any specific error of law or procedural irregularity in the Board’s proceedings.  In her supporting affirmation, she merely repeated her claim that her life and those of her children would be in danger if they were to go back to Ukraine. General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  At the hearing, the applicant frankly acknowledged that she does not currently fear harm from the Battalion.

23.  Second, the Board’s rejection of the Korotenkos’ claims was based on (1)  adverse findings of credibility as to whether Yaroslav had been abducted, and whether the Appellant had been harassed, as claimed, and (2)  findings that the Korotenkos had not made out the risk of harm from the Battalion on return. Such assessments are for the primary decision-maker.  The Board provided cogent reasons for refusing to accept the applicant’s account of the material events, and for its finding that the Korotenkos had not been able to articulate a clear belief that they would be harmed upon their return.  These findings were open to the Board on the evidence and involved no error of law, procedural unfairness or irrationality.  There is no basis on which the court can disturb them. 

24.  Third, it appears from her submissions at the hearing that the applicant no longer relies on the basis of the claim, namely, that she will be harmed by the Battalion if she returns to Ukraine.

25.  The Board went on to find that internal relocation would not be unreasonable or unduly harsh for the Korotenkos, having regard to a variety of country-of-origin information, the localised nature of the risk of harm, and the circumstances of the Korotenkos including their language difficulties.   It is well-established that the assessment of evidence, country-of-information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  We do note that this was the Board’s finding in 2019, and circumstances in Ukraine, and in particular Kyiv, have changed since that time. As the Board itself noted, the Ukranian language law had just been passed, and the Korotenkos did have genuine concerns in relation thereto. However, the Board’s conclusions regarding the viability of relocation to Kyiv could not be said to have been wrongly drawn at the time of its decision, and in any event did not affect the validity of its finding in relation to the primary issue of whether the Korotenkos had met the threshold requirements for seeking protection on the facts.

26.  For these reasons, we are of the view that although the reason given by the Judge for dismissing the applicant’s application for leave to apply for judicial was incorrect, it would nevertheless be right to dismiss the application as the intended judicial review does not enjoy a reasonable prospect of success. We therefore dismiss the applicant’s appeal.

27.  We would however make the following observations. The Board’s decision was made in 2019. As the applicant pointed out at the hearing, the circumstances in Ukraine have changed since that time due to the outbreak of war. The applicant’s personal circumstances have also changed – if what she said is correct, both of her children are now living in Hong Kong on dependant visas, and she relies on them given her health issues.  We have explained to the applicant that these are matters that do not arise for consideration in the current appeal. It would be for her to raise them with the Director and to seek a fresh consideration of her case.

28.  We direct that a copy of this judgment be sent to the Secretary for Justice, so that he can advise the Director of Immigration as to whether the applicant’s circumstances should be reviewed.