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Fabio Arlyn Timogan v Usm [Decision On Leave Application]

Judgment Cited in 1 Precedent Map Related
Vincent
Judgment Date12 March 2018
Neutral Citation[2018] HKCFI 525
Year2018
Judgement NumberHCAL608/2017
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL608/2017 FABIO ARLYN TIMOGAN v. USM

HCAL 608/2017

[2018] HKCFI 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 608 OF 2017

________________________

BETWEEN
Fabio Arlyn Timogan Applicant

and
USM Putative Respondent

________________________

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 The Honourable Mr Justice Wong:

Leave to apply for judicial review refused.

Observations for the applicant:

1. On 11 September 2017, the applicant filed a Notice of application for leave to apply for judicial review, naming USM as the proposed respondent.

2. In support of her application, on the same day she filed an affirmation in which the following exhibits were enclosed:

(1) Notice of Further Decision;

(2) Non-refoulement claim Appeal / Petition;

(3) Notice of Hearing; and

(4) Determination of Appeal / Petition with a Hearing.

3. In the Affirmation, she said “I want to fight what’s my right to stay here, my two children is born in Hong Kong.”

4. These are the entirety of what the applicant did in pursuance of her application for leave to apply for judicial review.

5. Judicial review is not a further or alternative appeal procedure. The court in judicial review only looks at the legality of the underlying decision but not its merits. In exercising this supervisory jurisdiction, as Lam J (as Lam VP then was) said in TK v Director of Immigration[1], the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury test.

6. It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that the test in deciding whether leave to apply for judicial review should be granted is whether the applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

7. The applicant did not provide any ground in support of her application.

8. Despite the applicant did not name the Director of Immigration (“the Director”) and the Member of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”) as the respondents, I consider the matter assuming it is the intention of the applicant to seek a judicial review on their decisions.

9. I have perused the Decision of the Director (including the first Decision of the Director which the Court obtained on its own initiative) and the Adjudicator[3] respectively. I do not find...

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