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

HCAL 2562/2024

[2025] HKCFI 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2562 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

 Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 20 December 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 June 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) refusing her application for non-refoulement protection.

2.The Applicant is an Indonesian national, now aged 31.  She is married and has a daughter.  She divorced her husband because he had extra-marital relations with other women.  She first came to Hong Kong in 2016 to work as a foreign domestic helper in 2016.  She overstayed since 1 July 2022.  She was arrested for overstaying on 9 March 2023.  Then she made a claim for non-refoulement protection under the Unified Screening Mechanism (the “USM”) on 11 March 2023.  In gist, her claim is that if returned to Indonesia, she will be tortured and killed by her ex-husband for refusing to remarry him. Her claim was assessed and rejected on all applicable grounds under the USM by the Director.  Her appeal against the decision of the Director was dismissed by the Board’s Decision.  She now seeks leave to apply for leave to apply for judicial review of that Decision.

Explanation for the late application

3.The leave application was filed 6 months and 16 days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged three months and 16 days out of time.  Extension of time to apply is required.

4.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.  The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

5.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  On 28 February 2025, the Court gave her directions to file a statement within fourteen days explaining the reason for taking about six and half months to take out the leave application and the grounds of her leave application.  The directions were sent to her by post care of Castle Peak Bay Immigration Centre (“CIC”) which was the address she stated on her Form 86.  It was returned marked “removed”.  The directions were re-sent to her on 13 March 2025 at her address subsequently discovered from the Immigration Department.  As at the date of this Form CALL-1, more than 14 days had lapsed.  The Applicant has not responded.  The letter containing the directions has not been returned through the course of mail.  There is nothing to suggest the Applicant has not received the letter or has moved.  The delivery service of Hong Kong Post is usually very reliable.  The Applicant had been informed by the directions that her leave application will be determined on paper after 14 days regardless whether the directions have been complied with.  Hence, the Court accepts she has no explanation for the delay and no grounds of application.

6.As the Applicant has offered no explanation for the substantial delay, the Court could have no factual basis on which to exercise its discretion to grant her extension of time to file the leave application.  On the other hand, a person in genuine fear for his safety if refouled would have wasted no time to apply as this is his last opportunity to challenge the Board’s decision.  The Applicant’s unexplained delay not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her leave application and her non-refoulement claim.  Her conduct resulted in delay in her refoulement process.  The delay is so inordinate as to be beyond the limit which any court could indulge.  Her conduct is a clear abuse of legal process.  Having examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant her extension of time to file the leave application.  Thus, extension of time to file the leave application is refused under the principle in Po Fun Chan v Winnie Cheung without the need to consider the merits of her leave application.

Conclusion

7.For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

Dated the 10^th day of April 2025

( Seline Sze )

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

Form CALL-1

[1] CACV 63/2015 (unreported) 3 November 2015

[2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ