Reswati v. Torture Claims Appeal Board

HCAL 896/2021

[2025] HKCFI 6152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 896 OF 2021

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant in 2018 made a written representation for non-refoulement claim for protection to the Immigration Department for herself and her daughter, but subsequently could not be contacted for further compliances of the necessary requirements to commence their claims, the Director of Immigration (“Director”) therefore by a letter dated 21 February 2019 informed her and her daughter of no further action to be taken of their claims.

2.Almost 2 years later on 16 September 2020, the Applicant in writing requested to resume the process of their claims, whereupon on the same day she and her daughter were given a briefing session for their claims, and were served with a Non-refoulement Claim Form (“NCF”) with instructions for them to complete and return within 28 days under Section 37Y(2) of the Immigration Ordinance, Cap 115, and that they were also referred to the Duty Lawyer Services (“DLS”) for legal representation for their claims.

3.However, on 7 October 2020 the DLS informed the Immigration Department of no further instructions to act for the Applicant or her daughter, and thereafter as they also failed to return the NCF for their claims as required despite repeated reminders from the Department for them to do so, the Director by a Notice of Decision dated 24 November 2020 informed them that their claims were treated as withdrawn under Section 37ZG (1) of the Ordinance.

4.Some 4 months later the Applicant by a letter dated 22 March 2021 requested to re-open their claims, and pursuant to Section 37ZG (3) of the Ordinance the Director by a letter dated 13 April 2021 required the Applicant and her daughter to provide their detailed reasons and evidence on or before 27 April 2021 for not being able to return their NCF as so required due to circumstances beyond their control, and with an advice for them to again seek legal representation from DLS.               

5.No reply or response was received from the Applicant or her daughter despite another reminder for them to do so, the Director therefore by a Notice of Decision dated 17 May 2021 refused their request to re-open their non-refoulement claims, and with an advice that if they felt aggrieved by that decision that they may appeal to the Torture Claims Appeal Board (“Board”) at its stated address within 14 days of the Director’s decision.

6.The Applicant however never did so, and instead on 21 June 2021 filed a Form 86 for herself only for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, or for that matter any explanation why she had not first lodged any appeal to the Board if she were so aggrieved by the Director’s decision as so advised.

7.As such, and in the absence of any appeal by her to the Board against the Director’s refusal to re-open her non-refoulement claim as required under Section 37ZR (a) of the Ordinance as so confirmed by the Board by its letter dated 16 July 2025, I do not find any legal basis for the Applicant’s intended challenge of the Director’s decision, and accordingly dismiss her leave application.

Dated the 12^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