Case Document

100%Judiciary

HCAL 3696/2019

[2025] HKCFI 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3696 of 2019

BETWEEN
	Samonte Gerlie Gersey	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative 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:

consideration of documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1. Form 86 be amended as follows:- theDirector of Immigration be named as the Putative Interested Party.

2. The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 11 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 14 November 2019 (the “Board’s Decision”).

2.In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

3.The Applicant had requested an oral hearing for the application. The hearing was held on 6 March 2025 and the Applicant attended in person.

Background

4.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below^{^[1]} for reference.

Discussion

5.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.In the Form, the Applicant has not provided any grounds in support of the Leave Application. In the supporting Affidavit, the Applicant simply stated that the Board had disregarded her dangerous situation.

7.I have considered the Board’s Decision in details. The Board had clearly considered and assessed the Applicant’s alleged situation comprehensively in determining the petition (see for instance paragraphs 10 to 19, 24 to 63 of the Board’s Decision).

8.I do not find any error of law, procedural unfairness or irrationality in the Board’s analysis and assessment. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

9.At the hearing on 6 March 2025, the Applicant submitted that she now has 3 children in Hong Kong. The father of the children has abandoned them and so she has to take care of the children who are all studying in Hong Kong. The fact that the Applicant has formed a family in Hong Kong is irrelevant to any of the applicable grounds for non-refoulement protection: Re Asjad Baig [2021] HKCA 1962, at §17.

10.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

11.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the submissions advanced by the Applicant at the hearing.

Conclusion

12.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 11^th day of April 2025.

( 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 11/4/2025 Samonte Gerlie Gersey 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 11/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15506/19/2/25/F1008 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 5143/18 (formerly RBCZ/10738/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)