Pariyem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 148/2020

[2025] HKCFI 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 148 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;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion.

2.  The extension of time for the late Leave Application is refused.

3.  The Leave Application be dismissed.

Observations for the Applicant:

Background

1.By prescribed Form 86 filed on 14 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 19 August 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 21 January 2019 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/2020/HCAL000148_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that she would be harmed or killed by her husband trying to convert her religion from Islam to Hinduism. 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.

3.In the Form 86, the applicant did not name any proposed respondent and loosely referred to the Board as the proposed interested party. She further erroneously stated a decision date of “29 April 2019” as the subject matter of the Leave Application. As the Board should have been the proper proposed respondent, the Director the proper proposed interested party, and the the subject matter of this Leave Application should have been the Board’s Decision, the Form 86 will be amended accordingly on the court’s own motion.

4.As the applicant has not requested for an oral hearing, 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, and she merely stated in her supporting affirmation that she did not wish to go back to her country until conditions improved.

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’s findings that that there was no reliable evidence to show the applicant faced any problems or experienced any physical suffering of the requisite severity, and of the reasonable availability of state protection and internal relocation, 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].

Whether to grant an extension of time

9.The Leave Application is late for almost 2 months.[5] The delay of almost 2 months is substantial. In the absence of any reason for the delay, and the lack of realistic prospects of success, this court will refuse to grant the applicant leave to extend time for the filing of the Leave Application.

Orders

10.The Form 86 is amended on the court’s own motion.

11.The extension of time for the late Leave Application is refused.

12.The Leave Application be dismissed.

Dated the 20^th day of March 2025

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