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HCAL 162/2020
[2025] HKCFI 1453
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 162 of 2020
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BETWEEN
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Yuliana |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 Leave Application be dismissed.
Observations for the Applicant:
Introduction
3. By prescribed Form 86 filed on 15 January 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 1 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 January 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000162_2020_files/the_Board's_Decision.pdf
4. The basis of the applicant’s claim is that she would be harmed or killed by her abusive husband who threatened to kill her and their son; or by the husband’s creditor. 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.
5. In the Form 86, the applicant named herself as the proposed respondent. As the Board should have been the proper proposed respondent, the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.
6. As the applicant had requested a hearing of the Leave Application, this court held a hearing on 28 March 2025. The applicant attended the hearing 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
7. 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.
8. 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.
9. 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 informed this court that she had nothing to add and only wished to withdraw the Leave Application
10. 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 applicant’s evidence was inconsistent and unreliable, and that even if the applicant’s evidence were accepted, the alleged feared ill-treatment would not reach the minimum level of severity, thus there is no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
11. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness in the Decisions of the Director and the Board. 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 realistic prospects of success such that would enable this court to grant leave[4].
Withdrawal of Leave Application
12. Since the applicant informed this court that she wanted to go home and withdraw the Leave Application, she was therefore asked to confirm her withdrawal under oath. The applicant affirmed that she and her husband have already divorced and her husband has remarried. The threat is now gone. She further confirmed that her application to withdraw was made voluntarily and that she understood that the Board’s Decision would continue to stand upon the withdrawal.
13. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
14. The Form 86 be amended on the court’s own motion.
15. The Leave Application be dismissed.
Dated the 29th day of April 2025
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(Alfred Chan)
for Registrar, High Court
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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 Applicant
on 29/4/2025
Yuliana
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 29/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15536/19/2/55/I1639
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 5176/18 (Formerly RBCZ 10710/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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