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HCAL 988/2020
[2025] HKCFI 2663
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 988 of 2020
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Gurung Dhan Maya |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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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:
The Leave Application be dismissed.
Observations for the Applicant:
Background
1. By prescribed Form 86 filed on 25 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 7 March 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 24 April 2017 rejecting the applicant’s non‑refoulement claim based on BOR 2 risk ground[1]. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000988_2020_files/1st_Board's_Decision.pdf
2. Prior to the Director’s Decision, the Director had rejected in a decision dated 30 July 2015 the applicant’s non-refoulement claim based on all applicable grounds except BOR 2 risk. The applicant’s appeal to the Board was also rejected by the Board’s prior decision dated 27 February 2017. The Board’s said prior decision is not the subject matter of the Form 86. The Board’s Decision is set out in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000988_2020_files/2nd_Board's_Decision.pdf
3. The basis of the applicant’s claim is that she would be harmed or killed by her creditor for an outstanding loan if she were to be refouled. 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. The applicant has requested for an oral hearing. However, on 6 May 2025, the court received a memo from the Removal Assessment and Litigation (Removal Deportation) Section of the Immigration Department. Enclosed with the said memo is the applicant’s signed memo dated 29 April 2025 applying for 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.[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. In the applicant’s Form 86 and her supporting affirmation, the applicant only provided vague and general grounds without condescending to particulars.
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, after the Board had considered the applicant’s appeal on papers without a hearing, the Board found that the right protected by BOR 2 had no relevance to the applicant’s asserted risks. In any event, the Board found that the applicant’s problem with the creditor was a private matter. In the absence of any evidence to show that the government’s acquiesce in the creditor’s alleged attempt to harm the applicant, the Board found that the applicant failed to establish that she would be at risk of BOR 2 harm if refouled.
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 the BOR 2 risk ground 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. This, plus an absence of explanation for the delay of about 12 months for the issuance of the Leave Application, this court is not satisfied that the applicant’s intended challenge to the Board’s Decision is reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].
Withdrawal application
9. In her letter seeking for withdrawal of the Leave Application, the applicant stated she would like to return to her home country as soon as possible as the issues there had 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.
Order
11. The Leave Application be dismissed.
Dated the 26thday of June 2025
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( 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:
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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)).
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Sent to the Applicants
on 26/6/2025
Gurung Dhan Maya
Applicant’s ref. no:
Nil.
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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 26/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 516/17/5/16/N43,
USM 2034/15/8/55/N226
Director of Immigration
Putative Interested Party’s ref. no.: INCZ 9001162/17 (formerly RBCZ 3000035/14), QA T/C 486/15 (formerly RBCZ 3000035/14) (T3I60)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The ground in relation to the right to life under Art. 2 of the Hong Kong Bill of Rights.
[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.
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