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

HCAL 2257/2020

[2025] HKCFI 4664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2257 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 applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of Application for leave to apply for Judicial Review” in the prescribed Form 86 filed on 13 November 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 30 September 2020 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 2 May 2019 (“Director’s Decision”) refusing to reopen the applicant’s non-refoulement claim after she had failed to return a completed Non-refoulement Claim Form (“NCF”) within the prescribed 28 days as required under s. 37Y(2) of the Immigration Ordinance (“Ordinance”).  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002257_2020_files/the_Board's_Decision.pdf

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

3.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 16 September 2025, which the applicant attended 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

4.  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.

5.  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.  The applicant’s Form 86 and the supporting affirmation did not have any grounds.

6.  At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  The applicant only stated that she had got married to a Hong Kong resident in 2022, and her application for a dependent visa to allow her to stay in Hong Kong was still being processed.  Hence, she required more time.  However, she had nothing to say in relation to the Leave Application.

7.  In the present case, the applicant’s appeal to the Board was 10 days’ late.  Board granted leave to the applicant for her to file her appeal against the Director’s Decision out of time.  After having considered the relevant statutory provisions set out in 37Y(2) and 37ZG of the Ordinance, the Board concluded that the applicant had not provided sufficient evidence in writing to support her application to re-open her non-refoulement claim under s. 37ZG(3) of the Ordinance.  The Board found that the Director was justified to refuse the applicant’s application to re-open her non-refoulement claim, and dismissed her appeal.  

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board observed a high standard of fairness.  The Board was entitled to find that the applicant failed to provide sufficient evidence to support her application to re-open her claim.  The applicant has provided no grounds at all, whether in writing or oral, to support the Leave Application.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  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[3].

Order

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

10.  The applicant’s 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