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

HCAL 1464/2020

[2025] HKCFI 6185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1464 of 2020

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 (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion by naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.The Applicant is a national of Indonesia. By a Form 86 filed on 13 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 13 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 12 October 2018 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.At the oral hearing of her application on 27 August 2025 the Applicant made some submissions, which I outline below, in relation to the issue of delay.

3.I have amended the Form 86 of my own motion to reflect the proper Putative Respondent and Putative Interested Party.

Background

4.This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of the Applicant’s claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if she were refouled to Indonesia, she would be killed by one Sukirman, a moneylender and her husband;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 10 January 2017 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 18 April 2018; and

(4)  The TCAB/NRCPO issued the TCAB Decision dated 12 October 2018, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.The application was filed more than 3 months after the TCAB Decision, and more than 18 months out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.Dealing, firstly, with the merits of her application, the Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. The latter merely makes the bare and vague allegation, copied word for word from other cases, that the TCAB had “disregard my dangerous situation”. This does not amount to a ground of judicial review as it does not sufficiently allege, let alone with sufficient particulars, any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history including criminal offences, and the details of the Applicant’s case. This was followed by relevant COI in relation to state protection, and principles and considerations in relation to the four types of risk before it on how to approach the evidence. The decision-maker outlined the nature of the matter before it and the events at the hearing, followed by relevant principles and his analysis in relation to evidence and credibility. He found that the centrepiece of the Applicant’s story did not stand, and rejected her evidence as not credible and being based on unsupported and unreliable claims, speculation, and hearsay. The evidence did not establish (even to the low standard applicable) a real risk of harm and only a low risk of future harm, the matter was only a private dispute without involvement of any state officials, and both state protection and internal relocation were available[8]. BOR3 Risk, Persecution Risk, and Torture Risk were rejected given those reasons, while in relation to Torture Risk the TCAB/NRCPO also identified the lack of state acquiescence and in relation to Persecution Risk the lack of any Refugee Convention reason. BOR 2 Risk was rejected given the lack of evidence as to the threat from a state party, or involvement of a public official or anyone in an official capacity. The Applicant had hence failed to establish any of the grounds of risk, her claims for non-refoulement protection failed, the appeal/petition was dismissed, and the Director’s Decision was confirmed.

13.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding evidence, credibility, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk. While the TCAB/NRCPO appears to have taken too narrow a view of BOR 2 Risk, it is clear that even if it had applied the correct test it would have reached the same conclusion, given the Applicant’s failure to establish BOR 3 Risk, the underlying findings (in particular those relating to the Applicant’s evidence, credibility, and risk of harm) relating to such, and the lack of any public law basis to vitiate such. I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

14.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

15.Secondly, there is undue delay in this case as the leave application was filed over 18 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

16.From the refusal letter notifying the Applicant of the TCAB Decision, both the said letter and the TCAB Decision would have been sent to the Applicant by post on or around 12 October 2018, to an address which was that provided by her in her Notice of Appeal[9]. At the hearing she confirmed that that was her address in October 2018 and that she had continued to reside there until 12 January 2019. However, she claimed at the hearing (without any supporting evidence) that she had not received either document in the post at that address. When I asked her how she had obtained a copy of the TCAB Decision (which was exhibited to the Affirmation) she replied that she thought she had obtained it after having been “informed” by a case officer in Ngau Tau Kok, and was then told by an “organisation” that she should get it from Kowloon Bay. She said that this had occurred at some point after she had given birth (which took place on 1 December 2018) but could not even remember the month in question.

17.I do not accept that I have been given an acceptable or credibly valid explanation for the delay. I refuse to accept or accord any weight to the Applicant’s vague attempt, unsubstantiated by any documentary evidence, to explain to how she learnt of the TCAB Decision. I also do not see any credible evidence to support her claim that the refusal letter and the TCAB Decision were not delivered to her address as provided to the TCAB/NRCPO, and hence to establish that the TCAB Decision was not served on and received by the Applicant on the second working day after it was sent (s. 37ZV Immigration Ordinance (CAP. 115)). The Applicant has slept on the matter and given the length of time that has elapsed, I am entitled to and would refuse the application for leave on the grounds of delay alone, even if her application were premised on strong grounds (which it is not).

18.Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

19.In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

Dated the 29^th day of December 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