Jompilla Ethel Gonzales v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 218/2025 [2025] HKCFI 3960 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 218 of 2025
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 January 2025, 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 8 October 2024 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 May 2024 (“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: - 2.In her Form 86, the applicant named herself and the Board as the proposed respondent and herself as the interested party. As the Board should have been the proper respondent and the Director interested party, the Form 86 will be amended accordingly on the court’s own motion. 3.The basis of the applicant’s claim was that she would be harmed or killed by her husband who threatened to kill her. 4.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.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 31 July 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.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. 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. 8.In her affidavit in support of her Form 86, the applicant stated that her life was still in danger. 9.At the hearing, this court asked the applicant whether she had any further grounds she wished to submit in support of the Leave Application. She said she had nothing to say. 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 applicant was absent from the hearing before the Board. After attempts to contact the applicant by phone to no avail, and upon being satisfied that the notice of the hearing had been properly served on her, the Board considered the applicant’s appeal on paper. After considered all the materials before it, the Board found that the applicant’s claims were not credible. The Board found that there were no substantial grounds to believe that the applicant faced and would face a risk of being subjected to harm from her husband. The Board was also satisfied that reasonable state protection and internal relocation would be available. 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 high standard of fairness. I am satisfied that the Board was entitled to assess the applicant’s appeal on paper in view of the applicant’s absence. The applicant’s written grounds are vague and unrelated to the Board’s Decision. Neither was she able to advance any grounds in support of the Leave Application at the hearing. 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[4]. Whether to extend time for the late application 12.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. The applicant was late for about 8 days, which I do not consider as serious or lengthy. 13.The applicant explained that at the time when the Board delivered the Board’s Decision, she was sharing a room with 4 other women. One of her roommates received the Board’s Decision but forgot to pass it to her. By the time the roommate gave her the Board’s Decision, the deadline had already expired. The applicant said that she filed the Leave Application 2 days after her roommate passed the Board’s Decision to her. 14.I find the applicant’s explanation plausible and accept her reason for the delay. Having regard to the short delay, I would exercise my discretion to grant her extension of time to file the Leave Application. 15.However, in view of the discussion above, the Leave Application lacks good prospects of success, the extension of time is moot. Orders 16.The Form 86 be amended on the court’s own motion. 17.The applicant is granted extension of time to file the application for leave to apply for judicial review. 18.The application for leave to apply for judicial review be dismissed. Dated the 2nd day of September 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 [1] Re Zunartyah [2018] HKCA 14 at [23]. [2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [3] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. [4] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 |
Cases cited in this judgment