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

HCAL 199/2022

[2026] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 199 of 2022

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 (Non-refoulement Claims) Sabrina Ho:

1.  The Form 86 be amended by naming the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as the putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 13 April 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”). As stated in the Form, the decision which the Applicant wishes to challenge is the Decision of the Director of Immigration dated 21 June 2021 (the “Director”, “Imm Decision”). The Applicant named both the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) and the Director as the proposed respondents and the Board as the interested party.

2.In the Affirmation filed by the Application in support of the Leave Application (the “Affirmation”), the Applicant stated that she wishes to seek leave for judicial appeal against the Imm Decision and exhibited a copy of the same.

3.The Applicant requested an oral hearing which took place on 30 January 2026 (the “Hearing”). At the Hearing, this Court asked the Applicant to clarify whether she would like to seek leave for judicial review against the Imm Decision or the Decision of the Board dated 3 December 2021 (the “Board’s Decision”), or both decisions. The Applicant clarified that she intends to challenge both the Imm Decision and the Board’s Decision. Apart from that, the Applicant did not add anything to her Leave Application.

4.The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para 45. Thus, I treat the Leave Application to cover the Board’s Decision only.

5.I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the putative interested party.

Background

6.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Leave Application out of time

7.The Board’s Decision was issued on 3 December 2021. However, the Form was only filed on 13 April 2022, over 4 months later and beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision, which is 3 months from the date of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

8.No application has been made by the Applicant for extension of time for her to bring the Leave Application. No explanation has been provided by the Applicant for the delay, whether in the Form or the Affirmation.

9.In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.  The length of the delay;

b.  The explanation of the delay;

c.  The merits of the substantive application;

d.  The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.  The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para 27

10.As I have pointed out above, there was no application for extension of time and no explanation for the delay. Further, the Leave Application has no merits, for reasons which I will explain below. Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.

Discussion

11.The Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

12.The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, 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 should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

13.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

14.I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and her grounds for challenging the Director’s decision in refusing her claim for non-refoulment protection. On the facts, the Board found that there is no or no reliable evidence to show that Nasir would harm or kill the Applicant if she were to be returned to Indonesia, that the Applicant faces risk throughout Indonesia, that she suffered injuries to the requisite severity, or that the state authorities were unwilling to help the Applicant: see the Board’s Decision paras 40-43. In addition, the Board considered that there were internal relocation options available to the Applicant: see the Board’s Decision paras 117-119. On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if she returns to Indonesia and rejected the Applicant’s appeal: see the Board’s Decision paras 44-103, 123. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

15.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

16.For the reasons stated above, I will dismiss the Leave Application.

Dated the 24^th day of March 2026

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