Suduhakur Gedara Malani v. Torture Claims Appeal Board

HCAL 86/2020

[2025] HKCFI 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 86 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.  On this court’s own motion, the name of the applicant be amended to “Suduhakur Gedara Malani”, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 3 January 2020 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000086_2020_files/the_Board's_Decision.pdf

2.The Board decided that the applicant did not make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration dated 30 November 2018 accordingly.

Amendments

3.The applicant did not state the correct names of herself, the putative respondent and the putative interested party in Form 86. This court therefore makes an order on its own motion to amend the applicant’s name to “Suduhakur Gedara Malani”, the putative respondent’s name to “Torture Claims Appeal Board” and the putative interested party’s name to “Director of Immigration”.

The applicant’s case

4.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the above hyperlink.

5.In sum, the applicant claimed for non-refoulement protection because she feared that her husband and the husband’s brother might kill or harm her, as she refused to transfer her properties to them.

Oral hearing

6.The applicant requested for an oral hearing and her case was heard on 18 March 2025. At the hearing, she repeated the same claims as mentioned in the Board’s Decision, ie her husband and his brother would kill or harm her if she refuses to give them her properties.

Discussion

7.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

8.The applicant failed to identify any grounds for the intended judicial review. In Form 86, she merely stated that she had problems with her husband’s family members. In her affirmation in support, she added that she faced death threat from her husband because of her property, and her husband had connection with the police and some gangsters too, so he could do any harm to her.

9.However, the Board did deal with the alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

10.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

11.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

12.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

13.For reasons aforesaid, the Leave Application is dismissed.

Dated the 16^th day of April 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