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

HCAL 169/2020

[2025] HKCFI 1649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 169 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 Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 16 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 December 2019 (“Board’s Decisions”) dismissing the applicant's appeals against the decision of the Director of Immigration (“Director”) dated 12 October 2018 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decisions can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000169_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that she would be:

(i)    Harmed or killed by her husband for having failed to repay his debts;

(ii)   Arrested and interrogated by the Indonesian police about a terrorist group that her uncle and husband belonged;

(iii)  Killed by the terrorists as she refused to join their activities.

3.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.

4.In the Form 86, the applicant incorrectly named the Board as the proposed interested party.  As the Director should have been the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

5.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 2 April 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

6.A Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is therefore sufficient for this court to state my observations after considering the Board’s Decisions and the applicant’s materials adduced.

7.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.  While the applicant did not set out her grounds in her Form 86, she did so in her supporting affirmation.  In her letter the court received on 18 March 2025, the applicant set out her written submissions.  According to the supporting affirmation and the applicant’s submissions, the applicant’s main complaint is that the Board’s Decision is tainted with procedural impropriety as the Board has failed to properly assess the relevant risks of harm, and to conduct sufficient inquiry into the relevant COI.

8.At the hearing, this court asked the applicant whether she had any further grounds she wished to submit in support of the Leave Application.  The applicant stated that she had nothing to add, and that everything she wanted to say was already set out in the papers filed with the court.

9.According to the Board’s Decision, the Board found that the applicant’s evidence was shifting, inherently inconsistent, illogical and vague.  In its assessment of the applicant’s credibility, the Board concluded that the applicant’s versions of events were hearsay and lacked details.  The Board rejected the entire centerpiece of the applicant’s account of events.

10.After having considered the applicant’s evidence that the applicant had spent 8 months in Jakarta without encountering any harm either from her husband or any terrorist organization before coming to Hong Kong to work as a domestic helper, the Board concluded that any claimed risks of harm would have been low. After having considered the objective COI, the Board further found that state protection would be available and that internal relocation would be viable.

11.The Board’s rejection of the applicant’s entire centerpiece of the account of events, and the findings of the viability of relocation and state protection are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board has correctly applied the law relating to all the grounds and observed a very high standard of fairness in the Board’s Decision.  The Board was entitled to reject the applicant’s evidence, and reach the conclusion on the availability of state protection and relocation.  The applicant has not shown any procedural impropriety as averred or errors of law or procedural unfairness or irrationality in the Board’s Decision.  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[3].

Orders

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

14.The Leave Application be dismissed.

Dated the 9^thday of May 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