Neng Ismi Dea v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 881/2020

[2025] HKCFI 2942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 881 of 2020

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 (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration as the Putative Interested Party.

2.  No extension of time be granted for the application for leave to apply for judicial review and the applicant herein be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 12 May 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Director of Immigration (“the Director”) dated 29 January 2018 (“the Director’s Decision”) rejecting her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM). On 30 November 2018, the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) confirmed the Director’s Decision (“the Board’s Decision”).

2.On my own motion, I have amended Form 86 to correctly name the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.The Applicant’s personal background, the incidents alleged in support of her non‑refoulement claim that she would be tortured or killed in Indonesia by her uncle due to her failure to repay a loan, and the immigration and procedural history, etc. were detailed in the Board’s Decision.  It is not necessary to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.It is important to note that it is the Board’s Decision, rather than the Director’s Decision, which is subject to the process of judicial review (see Re Moshsin Ali [2018] HKCA 549).

5.The Applicant has made the Leave Application out of time.  Under Order 53, rule 4 of the Rules of the High Court:

“ (1)   An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)   Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

6.I am not satisfied that the time for applying for leave to apply for judicial review should be extended, having considered the relevant legal principles established by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 and G Lam J (as he then was) in Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1.

7.First of all, the Applicant has not provided any explanation for her delay, nor has she made an application for an extension.

8.More importantly, I am not at all convinced that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)   The Applicant’s case was that she would be killed by her uncle, alleging that she had escaped death and an assassination attempt.  According to her, she no longer had any family in Indonesia and was a “homeless person”.

(2)   The Board found “significant discrepancies and inconsistencies” in several aspects of the Applicant’s evidence and concluded that she had manufactured all of her claims for non-refoulement protection in Hong Kong.  It was therefore concluded that she was not a truthful witness.

(3)   The Board did not accept that the Applicant had borrowed money from her uncle to pay for her father’s cancer treatment, nor that she had been harmed or threatened when she was unable to repay the money.  In the alternative, the Applicant’s claim did not fall within the scope of “torture risk”.

(4)   The Board was also not satisfied, on the basis of the evidence, that there were substantial or strong grounds for believing that there was a real risk that the Applicant would be subjected to torture or CIDTP in Indonesia.

(5)   Nor did the Board accept that the Applicant would suffer death penalty, arbitrary deprivation of life or genocide on the basis of a debt owed to an uncle or any other relatives, or there was a real chance or a real risk that she would suffer harm amounting to persecution upon return to Indonesia.  In any event, it was held that her claims would not fall within one of the Convention grounds, as it was a private dispute and her uncle would not be motivated to harm her due to her race, religion, nationality, membership of a particular social group or her political opinion.

9.The aforesaid matters were primarily within the Board’s province.  The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision.  It is not the Court’s role in a judicial review to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

10.Regarding the matter of prejudice, it is not appropriate to focus solely on the prejudice to the Applicant without considering the potential prejudice to public administration if the current application is allowed to proceed out of time.  Furthermore, the Applicant has not identified any issue of general importance.  It is essential to adopt a disciplined approach in handling these applications to avoid disruption to the orderly functioning of public administration.

Conclusion

11.I therefore decline to grant an extension of time for the Applicant to apply for leave to apply for judicial review.  Rather than permitting the Applicant to withdraw the Leave Application as she has expressed, I would instead make an order that the application be dismissed.

Dated the 31^st day of October 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