Montimayor Marialyn Monforte v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1353/2024

[2025] HKCFI 3123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1353 of 2024

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

Observations for the Applicant:

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 August 2024, 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 28 November 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 3 May 2023 rejecting the applicant’s non‑refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001353_2024_files/the_Board's_Decision.pdf

2.In her Form 86, the applicant named the Director and the Board as the proposed respondents as well as the interested parties.  As the Board should have been the proper respondent and the Director interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.The basis of the applicant’s claim is that if she were to be refouled, she would be harmed or killed by her husband as a result of the applicant’s filing of the divorce application. 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.The applicant filed an affirmation on 12 May 2025 to apply for the withdrawal of the Leave Application.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.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.

6.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.  In her Form 86, the applicant complained about both the Director’s Decision and the Board’s Decision.  In relation to the Board’s Decision, the applicant stated that the Board had failed to make sufficient enquiries about her claims and to give her sufficient chance to arrange relevant evidence.  In the supporting affirmation, the applicant stated that the Board’s Decision was unlawful as it failed to take into account of the dangers and risks.

7.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 conflict between the applicant and her husband was a private dispute.  It further found that the alleged ill-treatment from the husband had not reached the required level of minimum severity.  Hence, the Board concluded that the applicant’s fear of being harmed or killed when refouled back to her home country was not well-founded.  After having considered the relevant COI, the Board also found that state protection was also reasonably viable.  These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The grounds the applicant has put forth in her Form 86 and supporting affirmation do not condescend to particulars and are only bare assertions.  They do not show 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 any realistic prospects of success such that would enable this court to grant leave^[4].

9.Since the Leave Application was filed 5 months after the expiry deadline of the issuance of the Form 86 on 28 March 2024, I should also consider whether this court should exercise its discretion to grant an extension of time to the applicant.  The delay of 5 months is significant. The applicant shall be required to provide reason for the delay.  In view of the length of the delay, the total lack of explanation for the delay, and the conclusion on the merits stated above, I decline to exercise my discretion to extend time.

Withdrawal application

10.In her affirmation seeking for withdrawal, the applicant stated that she wanted to go home as her problem had been solved and applied for the cancellation of the Leave Application.  Further, in her signed memo dated 14 April 2025 attached to a letter of the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department dated 9 May 2025, she stated that she wanted to go back to her home country as soon as possible.

11.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

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

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

Dated the 25^thday of July 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