|
HCAL 2170/2023
[2026] HKCFI 2184
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2170 of 2023
|
BETWEEN
|
| |
Ani Ati |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-Refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
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:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 5 December 2023, 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 22 November 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 23 November 2022 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002170_2023_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant named the Board and the Director as the proposed respondents and named the Board as the interested party in addition to it having been named as a respondent. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
3. The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by her father’s creditor for the outstanding debts owed by her father. The 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. The applicant has requested for an oral hearing. On 18 November 2025, the applicant filed an affirmation to apply for the withdrawal of the Leave Application as she wanted to go home. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
5. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2] 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[3], 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 contained no such grounds.
7. 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.[4] In the present case, the Board found that the applicant had provided a generally credible account of her reason for not wanting to go home. However, the Board found that since she was not the borrower of the loan, and that the creditor had not made any past substantial threats to her, it was not satisfied that the applicant would face any risks of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
8. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant advanced no grounds in support of the Leave Application. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].
Withdrawal application
9. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
10. The Form 86 be amended on the court’s own motion.
11. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 24th day of April 2026
| |
(Alfred Chan)
for Registrar, High Court
|
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 the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 24/4/2026
Ani Ati
Applicant’s ref. no:
Nil. |
|
Sent 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 24/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21249
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1085/22 (formerly RBCZ 5000957/22) (T1I104)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
[2] Re Zunariyah [2018] HKCA 14 at §23.
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142.
[4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
|