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

HCAL 40/2024

[2025] HKCFI 5746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 40 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:

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 4 January 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 29 December 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 14 June 2022 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/HCAL000040_2024_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board as the interested party.  As the Director should have been the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by a loan shark for an unpaid loan borrowed by her father on her behalf.  The 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 has requested for an oral hearing.  On 13 June 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application.  Enclosed with the said letter was the applicant’s signed memo in both the Indonesian and English languages dated 4 June 2025.  In the memo, the applicant stated that she would like to withdraw the Leave Application as her issues at home had been resolved and she could return home.  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.  The applicant’s Form 86 and the supporting affirmation provided no such grounds.  

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 did not accept the applicant’s evidence as believable as it was vague and inconsistent.  The Board concluded that the applicant would not face a real risk of serious harm if refouled.  The Board further found that the state protection as well as internal relocation would be reasonably 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.

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 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 or otherwise.  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].

Withdrawal application

9.Apart from the application to withdraw the Leave Application referred to above, 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.

Order

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

Dated the 8^th day of December 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