NANI AGUSTIANI BT MUSTARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 165/2025

[2025] HKCFI 3124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 165 of 2025

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:         

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 13 January 2025, 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 3 December 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 10 September 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000165_2025_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended according on the court’s own motion.

3.  The basis of the applicant’s claim was that if refouled, she would be harmed or killed by her husband as the applicant had refused to let him have the custody of her children. 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.  On 21 May 2025, the applicant filed an affirmation to apply for the withdrawal of the Leave Application.  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.^[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.  However, the applicant has identified no such grounds either in her Form 86 or her supporting affirmation.

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.^[3] In the present case, the Board found that the threats her ex-husband made were only empty threats and the alleged ill-treatment from the husband did not reach the requisite level of severity. The Board concluded that the applicant would not face a real risk of harm if she were to return to her home country.  After having considered the relevant COI, the Board also found that state protection and internal relocation were also reasonably viable. 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, nor were such grounds identified in the Form 86. 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^[4].

Withdrawal application

9.  In her affirmation seeking for withdrawal, the applicant stated that she wanted to go home as soon as possible. In her signed memo dated 4 June 2025 attached to a letter of the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department dated 13 June 2025, she stated that she wanted to go back to her home country as soon as possible as her issues back home has been resolved.

10.  Apart from the application to withdraw the Leave Application, 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

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

12.  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