Placides Juvy Prevendido v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 259/2020

[2025] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 259 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 the Applicant being absent 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 23 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 26 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 August 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/HCAL000259_2020_files/the_Board's_Decision.pdf

2.In Form 86, the applicant named the Director and the Adjudicator of the Board together as the proposed respondents but did not name any interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim is that she would be harmed or killed by a drug syndicate after having quit delivering drugs for it. 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.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 7 May 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 7 April 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Several phone calls were made to the applicant’s given telephone number on 2 and 6 May as well as on the day before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.In her Form 86, the applicant advanced the following grounds for judicial review:

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

9.However, as can be seen from the grounds set out above, the grounds are either vague or unrelated to the Board’s Decision. Importantly, the applicant did not provide any particulars in support of her grounds.

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.[4] In the present case, the Board rejected the claim because it found it implausible that the applicant had delivered substantial quantities of methamphetamine for a drug syndicate for over a year before becoming suspicious. The Board also rejected the core of her narrative for being vague and lacking in meaningful detail.

11.The Board also found that even according to the applicant’s evidence, she was only threatened several times by the main contact of the syndicate, but nonetheless she was able to return to live at home for some months without any incident before leaving her country. In any event, the applicant no contact with the syndicate. Thus, the Board did not accept that there would be any 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.

12.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 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. 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[5].

Orders

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

14.The Leave Application be dismissed.

Dated the 20^th day 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