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

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

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 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 29^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