Case Document

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HCAL 13/2023

[2026] HKCFI 5810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 13 OF 2023

BETWEEN

	Razafindrasoa Vallerie Elisa	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 August 2022 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 34-year-old national of the southern African island country Madagascar who last arrived in Hong Kong on 14 April 2016 from mainland China as a visitor with permission to remain as such up to 28 April 2016 when she did not depart and instead overstayed, and on 13 May 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Madagascar she would be harmed or killed by some sex slaves traders for refusing to work for them. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Mangarivotra Nord, Toamasina, Madagascar. After leaving school she worked as a waitress in a restaurant in her home district to make her living.

3.In early 2014 she quitted her job, and as she was unable to find another job, she moved to stay with a friend who in 2015 introduced her to a woman by the name of Voangy who promised to arrange for her to work in some garment factory in Fuzhou, China, and so the Applicant on 31 August 2015 was accompanied by Voangy’s subordinates to leave Madagascar for China.

4.However, upon arriving in Fuzhou, the Applicant was taken to some place where she was forced to work as a prostitute instead when she was threatened that she would be killed if she refused to do so, and it was then that she realized that she had been sold as a sex slave by Voangy.

5.After having worked for a period in Mainland, the Applicant would be escorted to come to Hong Kong with some other women of the same trade for a holiday before being escorted back to China to resume her job as a prostitute, with the first trip to Hong Kong on 25 October 2015 when she returned to the Mainland on the same day, but on the second trip on 31 December 2015 she stayed for more than 2 weeks in Hong Kong until 15 January 2016 after having been granted an extension of stay by the Immigration Department.

6.During her last trip to Hong Kong on 14 April 2016, the Applicant however made her escape from her escort into hiding and overstayed in Hong Kong, and on 13 May 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 30 July 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Voangy and her people upon her return to Madagascar as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any further adverse interests of Voangy in her after all these years since she left Madagascar in 2015, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to Madagascar if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Madagascar with a large population of 25 million people spread across a vast territory of more than 587,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Toamasina or Antananarivo where it would be difficult if not impossible for anyone to locate her.

9.On 14 August 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 16 May 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from any sex slave traders in Madagascar or China that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon her first arrival in Hong Kong on 25 October 2025 or during her second trip on 31 December 2025 when she had stayed for more than 2 weeks and with ample opportunities to raise her claim including the occasion when she attended at the Immigration Department for extension of stay but still failed to raise her claim without any valid explanation that it is not accepted that she was the victim of any sex slave trade or was forced into prostitution by anyone or at risk of being harmed or killed by any sex slave trader upon her return to her home country that her claim for non-refoulement protection failed on all applicable grounds.

11.On 5 January 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

12.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.As the last day of the three-month period for her to file her Form 86 fell on 23 December 2022 after discounting the month of August 2022 for court vacation, the Applicant was therefore some 2 weeks late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of 2 weeks must be considered as substantial and inordinate, for which she explained at the hearing of her application that she was not aware of the procedural rules until later when she was able to seek help from her friends but by then she was already out of time with her application.

15.The record shows that the decision was sent on the same day of 23 August 2022 to her then reported address without being returned through undelivered post, and as ignorance of the procedural rules can never be accepted an any valid justification for their non-compliance, I am not satisfied that the Applicant has any good or valid reason for her serious delay.

16.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

18.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Madagascar, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason or justification for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 20^th day of October 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 October 2026 Razafindrasoa Vallerie Elisa Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 October 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16208/19/8/70/MGD7 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 281/19 (Formerly RBCZ 10507/18)[T2S53] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)