Mytrofanova Yuliia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 51/2021 [2026] HKCFI 4758 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 51 of 2021 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Levy made on 6 August 2026:
Observations for the Applicant: Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 12 December 2021, 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 31 December 2020 (“Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 12 December 2019 rejecting the applicant’s non-refoulement claim on all applicable grounds[1]. 2.On 18 December 2025, at a scheduled hearing of the Leave Application, the applicant informed the court that she was successful in her subsequent claim. By an order of the Director dated 30 May 2023, the Director found that the applicant’s subsequent claim was successful on the grounds of BOR 2 and 3 risks. Discussion 3.In the hearing, the applicant was not sure what she wanted to do with the Leave Application. She therefore asked for more time to enable her to consider her situation because she was concerned that if she were not to continue with the Leave Application, her status as a refugee granted by the United Nations could be prejudiced. The court therefore acceded to the applicant’s application to adjourn these proceedings in order to enable her to have more time to consider her situation and seek legal advice. 4.Since the hearing on 18 December 2025, the court scheduled a further hearing on 6 August 2026. The applicant appeared before the court. The applicant confirmed that she now has had sufficient time to consider her situation and that she would like to withdraw the Leave Application. 5.Under oath, the applicant confirmed that she wished to conduct these proceedings in English because she is totally comfortable to speak in English. She confirmed in English that in view of the successful subsequent claim and that the Director had granted her application to allow her to remain in Hong Kong, she wished to apply to withdraw the Leave Application. 6.She further confirmed with the court under oath that she had been given sufficient time to consider her circumstances and that she was making the present application to withdraw voluntarily. She further confirmed with the court that she understood that in the event of the withdrawal, the Board’s Decision shall remain valid. 7.In all the circumstances, in view of the clear confirmation by the application to withdraw the Leave Application, the court granted her application and dismissed the Leave Application. The dismissal is made without prejudice to her present status and also without prejudice to the Director’s subsequent decision in allowing part of her subsequent claim. Order 8.Without prejudice to the decision of the Director dated 30 May 2023 in which the Director accepted the applicant’s subsequent non-refoulement claim on the grounds of BOR2 and BOR3 risks mandating that the applicant would not be returned to Ukraine for the time being, leave to the applicant to withdraw the application for leave to apply for judicial review against the Board’s Decision dated 31 December 2020, and the Leave Application is dismissed. Dated the 21st day of August 2026
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] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. |
Cases cited in this judgment